Coal Tattoo

Coal enforcement trial begins in Kentucky

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It’s been a while since we revisited the litigation brought by environmental groups over what they say are widespread water quality violations and lax enforcement in Kentucky’s coalfields.

But trial began today in Frankfort, Ky., and my friend Jim Bruggers had this preview in the Courier-Journal:

The environmental groups, supported by Robert Kennedy Jr., and his Riverkeeper organization, last year alerted state authorities to numerous clean-water violations, prompting the energy cabinet to sue and fine the companies a combined $760,000. But the groups said the penalties were too lenient for the thousands of violations they had alleged, including repeatedly copying and pasting the same water quality discharge data at coal mines.

Appalachian Voices has more details of the litigation on its website here.

And if you’re on Twitter, check out the hashtag “#coalcase”  or follow Jim, because he’s live-tweeting the trial.

 

Last week, I did a quick overview post over on the Gazette’s Sustained Outrage blog about the annual Green Scissors report, which proposes ways to save government money by cutting environmentally harmful spending.

But I wanted to be sure to share with Coal Tattoo readers some of the report’s findings about the coal industry, for example:

Another conventional fossil fuel, coal, also continues to be the darling of Washington, despite its serious environmental consequences. The coal industry benefits from billions in federal subsidies, even as it makes substantial profits. Subsidies to the coal industry began in 1932, when the federal government first began allowing companies to deduct a portion of their income to help recover initial capital investments (the percentage depletion allowance). Since then, coal companies have enjoyed billions more in subsidies, including some hand- outs for simply following basic worker safety regulations, while earning billions in profits. Over the last decade, revenues at the largest domestic coal companies trended upwards, while profits have mostly followed. Peabody Energy, the largest private sector coal company, earned record breaking profits in 2008 and has already posted $461.3 million in profits in 2011, up 36 percent from the first six months of 2010. Consol Energy recorded nearrecord income of $540 million in 2009, and this year, first quarter profits nearly doubled from 2010 to reach $192 million.

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Massey problems put more pressure on Alpha

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CEO Kevin Crutchfield and the other folks at Alpha Natural Resources are about to get the perfect chance to show how their “Running Right” program can improve safety performance at coal mines.

The U.S. Mine Safety and Health Administration just announced:

The U.S. Department of Labor’s Mine Safety and Health Administration has issued notices of a potential pattern of violations to Randolph Mine operated by Inman Energy and Justice No. 1 Mine operated by Independence Coal Co. Inc., both underground coal mines in Boone County, W.Va., that were formerly owned by Massey Energy.

This means the new management from Alpha will get the chance to submit plans to clean up the problems at Randolph and Justice No. 1, and avoid MSHA putting those mines on a formal “pattern of violations” status. As MSHA explained:

Section 104(e) of the federal Mine Safety and Health Act of 1977 provides that mine operators with a pattern of significant and substantial violations be subject to closure orders for areas of the mine affected by those violations until the mine receives a clean inspection. Under current regulations, MSHA uses a screening process to determine whether a mine has a potential pattern of violations. A mine operator found to have a potential pattern of violations is given a period of time to reduce violations before MSHA uses its authority under 104(e) to issue closure orders.

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Photo of the Brushy Fork impoundment, by Vivian Stockman, with flight services provided by SouthWings.

We’ve all been waiting patiently to hear from the U.S. Office of Surface Mining Reclamation and Enforcement, which has been considering its review of the Alpha/Massey Brushy Fork slurry impoundment down in Raleigh County (see previous posts here, here and here).

Well, the decision has been made and I’m posting copies of OSM Charleston field office director Roger Calhoun’s letters to citizen activist Joe Stanley and West Virginia Department of Environmental Protection mining director Tom Clarke here and here.

The bottom line?

Calhoun has determined he doesn’t have enough evidence to conclude that WVDEP’s handling of safety issue at Brushy Fork has been “arbitrary, capricious, or an abuse of discretion,” the legal standard OSMRE created in its regulations for when federal inspectors can overrule state regulators.

Interestingly, Calhoun notes in his letter to Stanley that new testing aimed at determining how stable Brush Fork is hasn’t been completed, writing:

… The fact that we continue to examine the Brushy Fork impoundment as part of a topical study on lift compaction does not give me reason to find the state response to the [Ten-Day Notice] related to your December 2010 letter as inappropriate.

And in his letter to Clarke, Calhoun wrote:

… As you are aware, both our agencies have procured independent consultants for the testing of coarse coal waste embankment lift compaction at this facility and other facilities. The results of this review could cause reopening of a review of the issues in this TDN.

Calhoun went on to tell Clarke:

We do not concur with WVDEP’s assertion that this facility has been designed using the most conservative design criteria, or that OSM’s concerns are unfounded. Upstream construction by its very nature is not the most conservative approach to dam construction and the elevated pore pressures are an indication of elevated risks.

We’ll have more on this story, so stay tuned … 

In this photo released by China’s Xinhua News Agency, rescuers carry miners out of a flooded mine in Qitaihe, northeastern China, Tuesday, Aug. 30, 2011. Twenty-six Chinese coal miners were trapped Aug. 23 when workers broke through into an adjacent flooded pit. Twenty-two miners were rescued Tuesday from their flooded pit after being trapped underground for a week. Xinhua said three miners were rescued Saturday and that one body has been recovered. (AP Photo/Wang Song)

Here’s the latest from The Associated Press:

BEIJING (AP) — Their faces black with coal dust, 19 miners trapped for a week underground were pulled to safety Tuesday in northeastern China as rescuers searched for three missing colleagues.

Helmeted teams brought each man up on a stretcher, their faces blackened and their eyes covered to avoid damaging sun exposure after so long in the dark. The provincial governor greeted each of the 19 and assured them the rescue work was continuing.

“We are doing everything we can to save your colleagues,” Wang Xiankui said in footage shown on state broadcaster CCTV.

Twenty-six miners had been trapped in galleries relatively near the surface when water poured into a shaft on Aug. 23 from an adjacent, flooded mine. Three had been pulled out alive Saturday and one body was recovered.

The survivors, who were hospitalized in stable condition, were able to keep their helmet lamps operating for the 165 hours they were trapped. They sustained themselves with water that dripped from the ceiling and later nutrition packs sent through a 920-foot (280-meter) pipe drilled through the rock, which also provided fresh air.

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Tomblin names Phillips to W.Va. safety job

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This just in from the office of Senate President Earl Ray Tomblin, acting as governor:

Gov. Earl Ray Tomblin announced today that he appointed C.A. Phillips to the position of director of the Office of Miners Safety Health and Training.

“Because of his extensive experience with the mining industry and his dedication to the health and safety of West Virginia miners, I believe C.A. is the right man for the job,” said Gov. Tomblin. “C.A. is well versed in the needs and protection of miners and I am pleased that he has accepted the position permanently.”

Phillips, who has been serving as acting director since November 2010, is a McDowell County native who has worked in and around the mining industry since 1969. He was a miner and fireboss for the Olga Coal Company, and then went on to work as a Health and Safety Representative with the United Mine Workers of America. In 2001, he was appointed deputy director of the WVOMHST by former Gov. Bob Wise before later being appointed to the role of acting director in 2010 by Gov. Tomblin.

Mr. Phillips and his wife Tina reside in Summers, County.

When last we checked in on the Obama administration’s regulatory agenda for the federal Mine Safety and Health Administration, they had already backed off part of their plan for an “emergency temporary standard” to require proximity warning devices on underground coal-mining equipment. As we reported back in mid-July:

… Agency officials have decided to split this rule in half: They’ll issue an ETS for proximity devices on continuous mining machines, and then do through the regular rulemaking process for other mobile equipment. So generally, this means that protections will be put on continuous miners much more quickly than other mobile equipment.

Now, it appears that MSHA has further backed off its plans. In a news release issued a little while ago, agency officials said they now planned to issue a proposed rule on proximity devices for continuous mining machines — meaning no emergency rule of any kind of proximity detection devices.

According to the MSHA release:

Consistent with the principles in the president’s Executive Order on Improving Regulation and Regulatory Review, MSHA is proposing a rule instead of issuing a scheduled emergency temporary standard to provide opportunity for public participation prior to implementation.

MSHA said in the release:

The proposed rule would strengthen the protection of miners working near continuous mining machines by reducing the potential for crushing, pinning and striking hazards. From 1984 through 2010, 30 miners died and 220 were injured when they became crushed, pinned or struck by these machines. Two such fatalities occurred in 2010 and one, to date, in 2011. These fatalities and injuries could have been prevented by use of a proximity detection system.

Readers may recall that MSHA first put this issue on its regulatory agenda back in May of 2009, but didn’t get around to issuing a “request for information” on the matter in February 2010.  Then, in December 2010, MSHA said it planned to issue an “emergency temporary standard” — meaning agency officials felt miners were at grave risk and needed immediate protections — by March 2011.

At the time it announced plans for the emergency rule, MSHA said:

To date, in 2010, there have been five fatalities resulting from crushing and pinning accidents. Mobile equipment can pin, crush, or strike a miner working near the equipment. Proximity detection technology can prevent these types of accidents.

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The Chinese news agency Xinhua reports:

Rescuers were still struggling on Monday to reach 22 miners who have been trapped underground for a week in a flooded mine in northeast Heilongjiang Province.

Rescuers reported that they heard “knocking sounds” at about 2 a.m. Monday from within the Hengtai Coal Mine, located in the city of Qitaihe. They believe the knocking sounds may have been a response from the trapped miners, as the rescuers previously knocked on the sides of a 278-meter-deep hole that was drilled on Sunday night, hoping to establish communication with the miners.

Sadly:

Rescuers responded to the sounds by sending relief supplies down the hole at 9 a.m. Monday, including food, a lamp, a pen and some paper. A rope tied to the package was shaken by an unknown force as it was lowered, leading rescuers to believe that the miners had been located.

However, when the rescuers pulled the package back out of the hole an hour and a half later, they found that it had not been opened.

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There were a couple of interesting coal-related commentaries in the West Virginia and Kentucky papers over the weekend that are worth a look and some brief discussion.

First, archeologist Harvard Ayers wrote in Sunday’s Gazette-Mail about the continuing controversy over the CNN special on mountaintop removal.  Harvard points out that, while CNN titled its show Battle for Blair Mountain, some of the more interesting things about the current fight over the historic site went unreported:

The national audience for this prime-time show can be forgiven if they still wondered at the end of the feature what this struggle of brave coal miners fighting and dying on Blair Mountain was, and why this has any relevance today.

Instead, host Soledad O’Brien and the producers of the feature presented something that would more properly be titled, “Stopping Mountaintop Removal Costs Coal Jobs.” Using the decades-old industry excuse for destroying communities and mountains of “environmentalists versus jobs,” CNN insulted the people of the coalfields of Appalachia. They pitted the logic of stopping this incredibly destructive mining practice of mountaintop removal against the emotional plea of a family who would lose a job, and who had no concern at all for impacts on their neighbors and their mountains.

Harvard goes on:

The actual “Battle ‘for’ Blair Mountain” is a fascinating story that has little to do with environmentalists or jobs. It begins with the original 1921 battle itself, and the reasons the coal miners were eager to lay their lives on the line. West Virginia coal companies, unlike companies in Illinois and other nearby states, hated unions. The reason? You guessed it — cutting corners on safety and labor costs maximizes profits.

Over in Kentucky, my friend Al Cross, a former Courier-Journal political writer who now directs the Institute for Rural Journalism at U.K., had an interesting commentary called Right, left both deceive. He starts off taken GOP presidential candidate Rick Perry to task for his statements questioning the science of global warming:

That’s balderdash. At least 97 percent of scientists who regularly publish peer-reviewed climate research believe the earth is warming and that human activities are a contributing factor. The only real debates are over how much, and the likely timeline for future warming.

There is no proof that climate scientists have manipulated data to get more money for research, or to prove the earth is warming. The much-ballyhooed “climategate” involving some top climate scientists was based on emails that “show they stonewalled skeptics and discussed hiding data — but the messages don’t support claims that the science of global warming was faked,” The Associated Press reported in 2009, based on an evaluation by the director of scientific freedom, responsibility and law at the American Association for the Advancement of Science.

A series of official investigations have found likewise. In the most recent, the National Science Foundation announced this month that its inspector general found no misconduct by a leading climate scientist who was the main author of the 2008 study that showed a big, recent spike in Northern Hemisphere temperatures. Another study published this year confirmed those findings.

Then, Al writes that “message machines on the left can mislead, too.” His example? The recent environmental group-funded poll examining public opinion about mountaintop removal among residents of  West Virginia, Kentucky, Virginia and Tennessee. Al writes:

We saw that this month, as Earthjustice, the Sierra Club and The Appalachian Mountain Advocates released a poll of likely voters in Kentucky, West Virginia, Tennessee and Virginia on mountaintop-removal mining. Their news release was headlined “New Poll Finds Powerful Opposition to Mountaintop Removal Mining in the Heart of Coal Country,” and referred to “voters across Appalachia” and “the heart of Appalachia.”

Those lines were balderdash, too. The “powerful opposition” was in the four states as a whole, with 57 percent against mountaintop removal and 20 percent supporting it, but in the main region where mountaintops are being mined and removed, Eastern Kentucky and southern West Virginia, the results were quite different.

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Back in November 2010, the U.S. Mine Safety and Health Administration announced that it was warning Rhine Eastern LLC that the company’s Eagle No. 1 Mine in Raleigh County, W.Va., needed to clean up its act.

MSHA told Rhino the mine needed to stop having so many serious safety violations, or face being put on a “pattern of violations” status that would being repeated mine closures when additional problems occurred.

Rhino appeared to have gotten the message — at least temporarily. The company improved, and MSHA backed off. In March, the agency dropped its “potential pattern of violations” warning.

Then three months later, in late June:

Joseph M. Cassell, 33, of Glen Daniel died at approximately 1 a.m. on Monday, June 27, 2011, at Rhino Eastern LLC Eagle #1 Mine in Raleigh County. Mr. Cassell was a crew leader, and was struck by a rib roll while preparing to install timbers. The accident occurred in the #4 South section of the mine.

The material that fell was approximately 8 feet long, by 32 inches thick, by 3 feet high. MSHA photo.

And now, in an announcement last week, MSHA says it’s put the Eagle No. 1 Mine back on a “potential pattern of violations” with another warning letter. Agency officials reported:

The rate of Rhino Eastern LLC’s Eagle 1 Mine increased from 4.18 to 24.77 S&S citations and orders per 100 inspection hours. A rib fall fatality occurred at the latter mine in June, even though rib falls were specifically addressed in Rhino Eastern’s corrective action program.

MSHA chief Joe Main noted:

The need to monitor long-term compliance of potential POV mines was an issue raised by the Department of Labor’s Office of Inspector General, and one with which we fully agree.  MSHA will not allow mines to abandon corrective action programs after meeting short-term PPOV goals. We will insist these mines continue to provide miners the protections they deserve, and we will use all of the tools available to us under the Mine Act to ensure that they do.

Of course, MSHA was also touting its latest action against Rhino and another company in Tennessee, saying in its news release:

… They have failed to maintain those health and safety improvements and again have met the PPOV criteria, a first in the history of the enforcement of the Federal Mine Safety and Health Act of 1977.

Well, that’s not exactly true.  I quickly remembered a previous incident, not so long ago: Massey Energy subsidiary Spartan Mining’s Ruby Energy operation was put on a PPOV warning back in November 2010 as well.  And that came after MSHA backed off when the company improved following a previous PPOV warning in October 2009.

MSHA points out that second warning for Ruby Energy came during a separate nationwide review looking for mines with potential pattern of violations problems, whereas the latest action against Rhino Eastern comes as part of more ongoing monitoring for repeat violators by agency inspectors.

Perhaps so. But the whole situation — not to mention the death of a miner during the window in which MSHA had backed off Rhino — raises again the question of why MSHA insists on using warning letters at all as part of the pattern of violations process. The statute doesn’t require such a warning.

Joe Main’s proposed revisions to the POV rules would eliminate the warning letters, taking operators directly to an actual POV status and the tougher enforcement that entails.

The United Mine Workers union supports such a change.  So do mine safety advocates Wes Addington and Tony Oppegard.

Not surprisingly, the National Mining Association opposes the change.  But in doing so, NMA vice president Bruce Watzman cites an interesting supporter of his group’s view:

The current assistant secretary himself, when he served as administrator for the Department of Occupational Health and Safety at the United Mine Workers of America (UMWA), commented on the importance of the notice provisions contained in the current POV Rule. In his letter to MSHA regarding the proposed version of the current POV Rule, Assistant Secretary Main stated that “all mines which are under review for potential pattern of violations … shall be given notice to that effect by the Agency … This notice is designed to give operators the opportunity to take concrete actions to improve the citation history at the mine and to implement a remedial plan. MSHA should evaluate these [and] similar company efforts to correct a pattern of violations when the pattern notice conference is held.” He further stated that “when MSHA determines that a mine under review is subject to a pattern notice, the Agency should inform the operator … of the Agency’s intent to issue a pattern notice. The letter … should specify the basis for the determination and should give the operator … 15 calendar days after receipt to request a conference. At the conference there should be a review of the citation history … “

We don’t know when MSHA will get around to finalizing its rule. The comment period closed in April, and the next thing on MSHA’s regulatory agenda is to “analyze comments” until November 2011.

Stay tuned …

Friday roundup, Aug. 26, 2011

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In this March 1, 2007 photo, stockpiled coal sits next to idled equipment at the Bull Mountain mine south of Roundup, Mont. The operator of Montana’s only underground coal mine expects to resume full operations this week after being hit with multiple safety citations and two temporary shut-downs following a series of roof collapses. No one was injured in the four collapses, which occurred between July 18 and Aug. 12 at Signal Peak Energy’s three-year-old Bull Mountain Mine near Roundup. Mine president John DeMichiei said efforts to put in new supports to shore up damaged sections of roof were almost completed. (AP Photo/Matthew Brown)

I’ve been waiting for my buddy Hoppy Kercheval over at West Virginia MetroNews to offer his own personal brand of wisdom about the remarks Rep. John Conyers, R-Mich., made about West Virginia’s coal industry. If anybody can always been counted on to carry coal’s water with no questions asked, it’s Hoppy.

And I’ll be darned if Hoppy didn’t surprise me, though in doing so he adopted his take from another commentator who appeared on his show:

I was ready to add my two cents, until Fox News political commentator Chris Stirewalt talked me down. Stirewalt, a West Virginia native who previously worked for the Daily Mail and West Virginia Media before moving to Washington, said Conyers had actually done coal states a favor by saying what he really believes.

“Did you not think that’s the prevailing wisdom inside the left wing of the Democratic Party?” Stirewalt asked rhetorically. “Is this a surprise to someone?”

Good point.

Political rhetoric these days is typically about the parsing of words. For example, politicians and administrators talk about “transitioning” to alternative energy sources, rather than just disclosing their true intent, which is to block coal.

These artful dodgers keep the other side off balance, while appearing to create the impression that they’re open to compromise.

Interesting take, huh? Of course, nowhere in Hoppy’s commentary is there any mention of — let alone refutation of — the notion that the coal industry’s impact on West Virgina, let alone the world, hasn’t been completely positive.  Among most of the regional media, there’s a drumbeat of constant support for the coal industry, and attacks on anyone who dares to criticize it. But that drumbeat is built on and demands that they downplay or sometimes try not to mention at all things like black lung disease, climate change or the potential public health impacts of mountaintop removal.

Isn’t that an artful dodge, too?  Come to think of it, Hoppy’s commentary didn’t surprise me much at all.

But what was surprising this week was that The New York Times would publish such a misleading story about green jobs and clean energy as the one headlined, Number of green jobs fails to live up to promises, which reported:

A study released in July by the non-partisan Brookings Institution found clean-technology jobs accounted for just 2 percent of employment nationwide and only slightly more — 2.2 percent — in Silicon Valley. Rather than adding jobs, the study found, the sector actually lost 492 positions from 2003 to 2010 in the South Bay, where the unemployment rate in June was 10.5 percent.

Federal and state efforts to stimulate creation of green jobs have largely failed, government records show. Two years after it was awarded $186 million in federal stimulus money to weatherize drafty homes, California has spent only a little over half that sum and has so far created the equivalent of just 538 full-time jobs in the last quarter, according to the State Department of Community Services and Development.

Joseph Romm did a pretty impressive take-down of this story, observing, among other things:

Talk about a bait and switch. The NYT cites the Brookings study, but then pulls out one tiny piece of it to make the exact opposite argument of the study. As Climate Progress wrote, Brookings actually found that, nationwide:

From 2003 to 2010, the clean economy grew by 8.3 percent — almost double what the overall economy grew during those years …

“The pace of growth really is torrid in that sector,” says Mark Muro, a senior fellow at Brookings Metropolitan Program and a co-author of the report. “This confirms the intuition that these exciting industries really are growing as fast as we think they are.”

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It wasn’t so long ago that a federal court ruling in a case involving Massey Energy and the federal Mine Safety and Health Administration would have gotten tons of local media attention — even national coverage, probably.

But I have to say that even I had lost track of Massey’s lawsuit challenging the way MSHA enforces ventilation plans at underground coal mines. Some readers, though, may recall, that the dispute focused on whether Massey could use scrubbers to control dust and thus also be allowed to take larger cuts of coal. They might also recall this was one of the issues Massey pressed with MSHA in its public relations campaign to deflect attention on safety problems that led to the Upper Big Branch Mine Disaster.

Then, I saw the Courthouse News Service site’s story about last week’s ruling by U.S. District Judge James Boasberg, reporting:

Six coal companies owned by Massey Energy can move forward with claims that safety regulators violated their constitutional rights in the way they implemented a mine-safety law, a Washington federal judge ruled.

U.S. District Judge James Boasberg tossed the companies’ claims that that the Federal Mine Safety and Health Act of 1977 itself is unconstitutional, but allowed the companies to proceed on claims that the Mine Safety and Health Administration may be putting the act into practice in an unconstitutional way.

Elk Run Coal Company and five other mine operators sued the Department of Labor, the administration and three of its officials, claiming the act was unconstitutional because it allowed the administration to arbitrarily refuse to allow the companies to use certain types of mine ventilation systems, like scrubbers that remove coal dust from the air.

Importantly:

… The judge refused to scrap the companies’ claim that the administration implemented the act in a way that violated their due process rights. The companies accused the administration of having a “pattern and practice” of “refusing to approve a submitted plan or adopting an arbitrary position with respect to the plan that is based on generic beliefs unrelated to the specific conditions or mining system at the mine.

 

 

The folks at Coal River Mountain Watch have announced today that they will:

… Observe a moment of silence at noon, Eastern Daylight Time on Saturday, August 27, 2011 to commemorate the birth and brilliant life of Julia “Judy” Bonds. They are calling on all activists to join this remembrance. Judy, who died in January of this year, would have been 59 years old Saturday. Judy’s fierce activism and determination crystallized the movement to end mountaintop removal coal extraction in Appalachia. This moment of silence will be observed annually.

Rep. Conyers calls out the coal industry

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The first press release to come in was, predictably, from our good friend, Sen. Joe Manchin. The West Virginia Democrat invited Rep. John Conyers, D-Mich., to discuss his comments “degrading West Virginia.”

Then came a statement from United Mine Workers President Cecil Roberts, saying he was “extremely disappointed” by Conyer’s remarks about the coal industry. Last — and after the close of business hours — we got a release in which Senate President Earl Ray Tomblin, acting as governor said:

It is a sad day indeed when a congressman such as John Conyers attacks our State, our people, and a resource that not only has powered our Country but must also continue to play a significant role in the economic health of our economy.

For a minute, I thought for sure that Rep. Conyers must have picked up where the coal industry’s lawyers left off, blaming any increased health problems among residents of West Virginia’s southern coalfields on the fact that we’re all inbred hillbillies. But no, here’s all that Rep. Conyers dared to say:

There’s a big campaign going on about how you clean coal and we want to examine that as critically and fairly as we can, but here’s the problem: I’ve been to West Virginia, and that’s about all they’ve got there.

We’ve got to work out a situation in one state of the union, there may be others, in which we come up with alternative ways of creating full employment without just putting everybody out of work.

OK. In fairness to Sen. Manchin, Cecil Roberts and Senate President Tomblin, there is a paraphrase — not a direct quote — in the story by Greenwire (subscription required)[UPDATED – The Greenwire story has now been posted on the New York Times site here] that said this:

He called for the industry to be shut down in the state and for those who rely on coal jobs there to find alternative employment.

UPDATED: I asked Greenwire about this paraphrase, and reporter John McArdle was kind enough to share with me some more information about where that line in the story came from. After the speech, McArdle asked Rep. Conyers about his remarks on West Virginia and coal, “You would like all those people to get out of the coal industry?” Conyers responded:

If there’s no such thing as clean coal and coal is a major polluter then yes.

McArdle asked, “Shut the industry down and find alternative employment? Conyers said:

That’s what I said.

We posted a news story about this matter earlier this evening on the Gazette’s website here.  But frankly, I’m still trying to figure out what the big deal in some ways. The bulk of Rep. Conyer’s point seems to be that West Virginia needs a more diverse economy. Anybody really disagree with that?

Of course, Rep. Conyers also says that “from my limited understanding, there is no such thing as clean coal” and he adds that the history of coal mining in West Virginia “is one of the sorriest reports you’ll ever see.”

Now let’s see, more than 21,000 West Virginia coal miners have died in on-the-job accidents in West Virginia. Untold thousands more died from black lung disease. Just a couple of weeks ago, none other than Cecil Roberts was attacking the West Virginia State Museum because it fails to adequately depict his union’s history of “struggle and oppression” for fair treatment by the state’s coal industry.

It’s been just 15 months since 29 West Virginia coal miners died in the worst U.S. coal-mining disaster in a generation. There’s a growing consensus among scientists that mountaintop removal coal mining is causing pervasive and irreversible impacts on the Appalachian environment — and WVU’s Michael Hendryx and his colleagues have published paper after paper outlining very troubling associations between increased disease and living near mountaintop removal operations.

There’s really no question at all that burning coal causes and contributes to thousands of premature deaths and various illnesses every year, imposing huge hidden costs on not just human lives but our economy. Despite industry-backed reports that tout the coal industry’s economic contributions to our state, other more independent research shows coal’s costs to state government are actually more than its contributions.

And, of course, there’s the biggest problem of all: Coal’s huge contributions to global warming. West Virginia political leaders talk a good game about “clean coal,” but none of them were willing to support legislation or regulation to require cuts in carbon dioxide from power plants — thus prompting utilities like American Electric Power to see no reason to move forward with perfecting and deploying carbon capture and storage technology that might actually keep coal viable in a carbon-constrained world.

Cecil Roberts complains that Rep. Conyers wants to “throw [people] out of work” and Early Ray Tomblin’s press release refers to the congressman’s “disrespect for West Virginia, [and the] hard-working men and women of the coal industry.”

But lots of elected officials, not to mention activists, have called for shutting down the coal industry. Rep. Conyers is among the few that seem to make a major point of talking about what might happen to the men and women who rely on the industry to put food on their tables. Don’t forget that most projections are calling for a major reduction in Central Appalachian coal production by the end of this decade — regardless of what regulators do about air pollution, climate change or mountaintop removal.

Isn’t a welcome change for an out-of-state politician who criticizes the coal industry to talk in the same speech — several times, apparently — about the need to do something to improve coalfield economies, to provide jobs in more than one industry?

And anyway, not for nothing, but where were all of these press releases when the coal industry’s lawyers said we were all a bunch of inbred hillbillies?

Here’s the word today from the U.S. Mine Safety and Health Administration:

The U.S. Department of Labor’s Mine Safety and Health Administration today announced that federal inspectors issued 375 citations and orders during special impact inspections conducted at 10 coal mines and five metal/nonmetal mines last month. The coal mines were issued 232 citations and 24 orders, while the metal/nonmetal operations were issued 108 citations and 11 orders.

Special impact inspections, which began in force in April 2010 following the explosion at the Upper Big Branch Mine, involve mines that merit increased agency attention and enforcement due to their poor compliance history or particular compliance concerns, including high numbers of violations or closure orders; indications of operator tactics, such as advance notification of inspections that prevent inspectors from observing violations; frequent hazard complaints or hotline calls; plan compliance issues; inadequate workplace examinations; a high number of accidents, injuries or illnesses; fatalities; and adverse conditions such as increased methane liberation, faulty roof conditions and inadequate ventilation.

As an example from last month’s impact inspections, on July 22, MSHA inspectors arrived during the second shift at Wilcoal Mining Inc.’s Tri-State One Mine located in Claiborne County, Tenn. The inspection party immediately seized and monitored communications at the mine to prevent advance notification. More than two-thirds of 32 citations and orders issued were designated as significant and substantial. The impact inspection was the sixth conducted at this mine.

MSHA issued eight unwarrantable failure closure orders for conditions that presented serious hazards in the event of a fire, explosion or other emergency that could prevent miners from safely exiting the mine. The operator was cited for failure to maintain a primary escapeway for safe travel due to the presence of lumber, other debris and water up to 10 inches in depth; inadequate pre-shift examinations; failure to conduct a proper electrical examination; use of a water pump without a fail-safe ground system in the primary escapeway; not providing the required number of self-contained self-rescuers at the section storage location as well as two-way communications for one of the mine’s refuge alternatives on the active section; and inadequate ventilation.

Twenty-four 104(a) citations were issued for hazardous conditions that, if left unchecked, could potentially cause or contribute to a roof fall, mine fire or explosion. These violations concerned a lack of emergency roof support supplies; improper roof bolt spacing; excessive coal accumulation; misaligned and unguarded conveyor belts, and a damaged conveyor belt roller; nonworking ventilation control doors; improperly maintained and nonpermissible electrical equipment; noncompliance with the approved emergency response plan; and nonfunctioning communication and tracking systems.

Tri-State One Mine was one of 13 operations to receive a letter from MSHA in November 2010 that placed it on notice of a potential pattern of violations of mandatory health or safety standards under Section 104(e) of the federal Mine Safety and Health Act of 1977.

As a second example from last month, MSHA issued 13 citations and orders during an impact inspection conducted on July 1 at Inman Energy’s Randolph Mine, located in Boone County, W.Va. The inspection party arrived at 4 a.m. and captured the phones prior to proceeding. The impact inspection was the second conducted this year at the mine.

Six unwarrantable failure closure orders were issued for accumulations of combustible materials on the working section from the feeder to the face, overhanging rock brows on the working section that were not adequately supported or otherwise controlled, failure to follow the mine’s approved ventilation plan, miners not being made aware of the designated responsible person on duty, and failure to conduct and record adequate pre-shift and on-shift examinations. Inspectors also cited a number of violations involving other hazardous conditions, including permanent ventilation controls that were not properly constructed or otherwise maintained, accumulation of water in a return air course, an unguarded high-voltage cable, improper storage of compressed oxygen cylinders and inadequate support of a kettle bottom in the mine roof.

“The closure order is still one of the most effective tools inspectors have to bring about compliance, even during impact inspections,” said Joseph A. Main, assistant secretary of labor for mine safety and health. “We will not hesitate to use these and other enforcement tools to protect the nation’s miners.”

Since April 2010, MSHA has conducted 307 impact inspections, which have resulted in 5,526 citations, 518 orders and 19 safeguards.

MSHA has posted a summary of the inspection results here.

 

Circuit Court Judges from left: Judge Jay Hoke of Lincoln County, Judge James Mazzone of Ohio County, and Judge John Hutchison of Raleigh County listen to pretrial motions in a coal slurry pollution lawsuit against Massey Energy in Ohio County Circuit Court on Friday, July 22, 2011, in Wheeling, W.Va. (AP Photo/The Intelligencer, Scott McCloskey)

Lawyers for Massey Energy and coalfield residents were plugging right along, arguing over how The Associated Press found out that they had settled a case over Massey’s coal slurry pollution for $35 million … Then the walls of the ceremonial courtroom in the old Kanawha County Courthouse shook.

Was God telling us that Massey lawyers should stop their campaign to figure out AP writer Vicki Smith’s sources? Or was it just the rumblings from the Mineral, Va.-based earthquake hitting West Virginia?

Whichever it was, the courtroom security folks cleared us all out, and eventually Judges Jay Hoke, James Mazzone and John Hutchison finished up their hearing on the steps of the building. The judges agreed to Massey’s request that the court privately inspect a telephone call script and a letter the plaintiffs’ lawyers used to inform their more than 850 individual clients of the settlement terms.

It’s not clear exactly what the judges are looking for, or what they’ll do if they find it. Are they trying to figure out exactly who leaked the settlement letter to the AP? What if they figure that out? Will this person be punished somehow? I asked Judge Mazzone these questions, and he said:

I’m not exactly sure what the scope of our examination will be.

But what I really can’t figure out is why the judges are going to all this trouble without first making even the most basic attempt to answer the more important threshold question: Should this settlement be secret in the first place?

This question became even more confusing when, at yesterday’s hearing, the panel judges indicated that had not even seen the settlement agreement yet. If they haven’t seen it, how could there be an actual order of the court sealing it from the public?

As we all stood outside the courthouse yesterday afternoon, I tried to get an answer on these issues from Judge Mazzone. He at first declined to comment, but then called Judge Hutchison over to help him try to answer my query. Judge Hutchison explained that his view is that the two parties to the lawsuit — Massey and the residents — agreed to a secret settlement, and that’s the end of it, unless someone files suit to challenge that confidentiality:

It’s up to a third party to ask for such things to be unsealed.

I asked the judge, perhaps foolishly beginning my question with the phrase, “with all due respect,” if he could point me to some case law in West Virginia that backed up that conclusion. The judge snapped, “Don’t ‘with all due respect me'” and stomped off, refusing to answer any more questions.

So is Judge Hutchison right? Are judges just supposed to accept whatever secrecy the parties to a civil suit drop into the court’s lap?

Well, the Gazette has had some recent experience litigating this issue in a case involving Massey, the Upper Big Branch Mine Disaster and the Alpha Natural Resources merger. We won the case, unsealing hundreds of pages of court filings. You can read our lawyers’ brief here and Kanawha Circuit Judge Charles King’s ruling here.

You would think the panel judges in this Massey slurry case would understand the law in this area, since one of the more important cases involves a Supreme Court review of actions by Judge Hoke to seal court records and close his courtroom.

In that case, the Supreme Court made two important findings:

— The open courts provision of Article III, Section 17 of the Constitution of West Virginia guarantees a qualified constitutional right on the part of the public to attend all civil court proceedings; and

— Unless a statute provides for confidentiality, court records shall be open to public inspection.

The court went on to say that, “the qualified public right of access to civil court proceedings guaranteed by Article III, Section 17 of the Constitution of West Virginia is not absolute and is subject to reasonable limitations imposed in the interest of the fair administration of justice or other compelling public policies.” But the justices also made it clear that circuit judges aren’t supposed to just approve secrecy requests by the parties without examining whether confidentiality is the best move in a particular case:

In performing this analysis, the trial court first must make a careful inquiry and afford all interested parties an opportunity to be heard. The trial court must also consider alternatives to closure. Where the trial court closes proceedings or seals records and documents, it must make specific findings of fact which are detailed enough to allow appellate review to determine whether the proceedings or records are required to be open to the public by virtue of the constitutional presumption of access.

Other courts have found that judges should not “abdicate their responsibility” to protect the public’s right to court records and only allow records to be sealed in very limited circumstances.

And most recently, a federal judge in Virginia refused to allow the parties to a civil litigation settlement to seal the terms of their settlement, even though no third party had intervened to argue for openness. As the Reporters Committee for Freedom of the Press reported:

Despite the urging of both parties that the secrecy of the deal was a key aspect of the agreement, the court denied the request to seal it and ordered the parties to indicate whether they wished to continue with the settlement — knowing its terms would be available to the public — or proceed to trial.

“Few principles have as long a pedigree and are as well-settled as the public’s right of access to court proceedings and judicial documents,” Ellis said. “With strong roots in the common law and the First Amendment, this principle is central to the legitimacy and independence of the judiciary. . . . While this right is not absolute, courts have uniformly emphasized that sealing should be the relatively rare exception, not the common practice.”

So far, we haven’t heard much from either side about why this settlement’s details should be kept secret. All that Massey lawyer Dan Stickler told the court yesterday was that AP’s publication of the settlement amount could be problematic for his clients in other similar cases that are pending:

We have other litigation where this kind of information could have a very negative impact on the proceedings.

And, even though AP already knows the settlement details — and has published them for all the world to see — Judge Hutchison warned the plaintiffs lawyers to caution their clients about further leaks:

Everything has got to remain confidential.

Alpha/Massey seeks to end shareholder suit

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It’s been a while since we heard anything about the shareholder derivative suits pending against Massey Energy and the former top executive and board members from Massey.

But today, Kanawha Circuit Judge Charlie King held a hearing, to give lawyers for Alpha Natural Resources and those former Massey management personnel and board members a chance to argue that at least one of those cases should be tossed out of court.

Basically, lawyers for the company and the board members argued that when Alpha and Massey merged back on June 1,  the plaintiffs in this case lost their right to bring the suit.

Lawyer for the plaintiffs (shareholder groups of the former Massey Energy) allege that their case falls within an exception, for situations where a merger was aimed at escaping liability. Plaintiffs have previously offered a variety of evidence (see here, here and here)  they say supports the nation that Massey officials moved toward the Alpha deal to help them avoid any personal liability for the Upper Big Branch Mine Disaster.

One tricky thing here is that some of those claims by the plaintiff were made in a proposed second amendment to their original complaint. Judge King hasn’t yet given approval for that amended complaint to be officially filed. And the previously approved complaint doesn’t contain these specific allegations about the merger because, well, the merger hadn’t happened when it was written and submitted to the court.

Judge King did not rule this morning, and gave both sides a couple of weeks to submit proposed orders outlining what they would like the judge to do. So stay tuned …

About the jobs: Is there a war on coal?

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The Daily Mail’s Jared Hunt had an interesting story this morning. Headlined, “State jobs data less than positive,” the story explained that despite a drop in unemployment, the number of West Virginians working or looking for work has dropped to its lowest level since 1993.

If you read further down into the story, you get to this part:

But the president of the state Chamber of Commerce says that the state’s dwindling workforce should be a sign to lawmakers that it’s time to get serious about fostering economic growth in the state.

“We simply can’t continue doing all the things we’ve been doing and rest on our laurels,” said Chamber president Steve Roberts. “We’re hard as hell on manufacturing, so we keep losing manufacturing employment. We have a national policy that is very anti-coal, and we’re holding our breath that Marcellus shale may help us in the future, but right now we don’t know for sure.”

He said it’s time that the state Legislature — particularly the House of Delegates — got around to adopting policies to counter the state’s traditionally low rankings in business friendliness.

The Daily Mail pitched this as a story that dug deeper into the numbers than state officials wanted the public to see … But unfortunately, the story didn’t do much digging into Steve Roberts’ remarks.

And doing so wouldn’t have required looking very far … Take Friday’s installment of the West Virginia Center on Budget and Policy’s blog, headlined “The War on Coal“?  In it, Sean O’Leary writes:

If you’ve read a newspaper, visited an airport, or driven on the highway lately, you’ve probably noticed a billboard or advertisement or two blaming the EPA for destroying coal jobs or creating a no job zone through environmental regulations. The supposed effects of the “war on coal” are not limited to Appalachia either, as U.S. representative Mike Simpson of Idaho recently claimed that, ” … the overregulation from EPA is at the heart of our stalled economy.”

But if EPA regulations are creating a “no job zone” in Appalachia and stalling economic growth, then one would expect to find some serious declines in mining employment. But that isn’t the case. In fact, according to the BLS numbers, in the past 12 months, the mining sector has seen the largest increase in employment in West Virginia.

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Sen. Joe Manchin likes to issue press releases. He especially likes it if those releases can tout new jobs or investment in West Virginia — or maybe work in the words “common sense.”

But the one his press office issued in Friday was especially puzzling. Headlined, Manchin Statement Regarding Consol’s Investment In WV’s Marcellus Shale, the release said:

Investing in our state is the key to economic growth and creating good jobs, and so I applaud the news of Consol’s investment in developing West Virginia’s Marcellus shale resources. Consol’s decision speaks volumes about the business and economic climate in our state.  I strongly believe Marcellus shale could be a game-changer for West Virginia, and that is why it is so important to have smart investments that will utilize our state’s great labor force, and achieve the right balance between our environment and our economy.

This announcement from Consol, coupled with the growing demand for our state’s coal, also proves why I so passionately believe that working with industry and responsible energy development is critical to our state’s and nation’s future. In light of the serious economic challenges our nation faces, I would hope that the federal government finally takes note of investments like these and realizes that – if we want our economy to grow and new jobs to be created – now is the time to be a partner, not a regulatory obstacle. In fact, if we are going to rebuild America, the best thing the federal government and regulatory agencies can do is to work with states like ours so we can expand the economic growth we’re seeing in West Virginia all across this great nation.

What’s so puzzling about that?

Well, read what the CONSOL Energy announcement actually said:

CONSOL Energy Inc. (NYSE: CNX) announced today that it has entered into an agreement with Noble Energy, Inc. (NYSE: NBL) for the joint development of CONSOL’s 663,350 Marcellus Shale acres in Pennsylvania and West Virginia for aggregate payments to CONSOL of approximately $3.4 billion. Under the agreement, Noble Energy will acquire 50% of CONSOL’s Marcellus Shale interest including a 50% interest in CONSOL’s existing Marcellus Shale wells.

CONSOL is selling half of its existing Marcellus Shale investment. The company isn’t investing — it’s divesting.

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Last week, public radio reporter Erica Peterson at WFPL was reporting on a visit by top U.S. Environmental Protection Agency officials to the coalfields of Kentucky. UPDATED: Erica has a wrap-up piece on the EPA tour here.

EPA Administrator Lisa P. Jackson wasn’t part of the event, but apparently her top aides who focus on environmental justice issues did attend, meeting with coalfield citizens to hear their concerns about strip mining and other matters. EPA Region 4 officials were also part of the trip.

At one point during the event, according to a “Tweet” from Erica, a woman from Wise, Va., asked why EPA Region 3 officials had not made a similar visit to the coalfields in their region.

I asked EPA Region 3 spokesperson Terri White about this, and I was told the region did do such a visit to Southern West Virginia back in November. The event was coordinated with local environmental groups, but it was not announced publicly.

Some readers may recall that OSMRE Director Joe Pizarchik made a private tour of the coalfields a while back