Breaking: Patriot agrees to huge selenium cleanup

January 18, 2012 by Ken Ward Jr.

Photo by Vivian Stockman, Ohio Valley Environmental Coalition

In federal court down in Huntington, attorneys for the Sierra Club and other groups have just filed copies of a major lawsuit settlement that insiders are saying could require Patriot Coal to spend hundreds of millions of dollars to treat selenium pollution from three of the company’s major mountaintop removal mining complexes here in West Virginia.

The deal will require Patriot to build and operate new treatment systems for 43 water discharge outfalls on 10 different permits — far more than 14 outlets covered in a previous deal with Alpha Natural Resources or the five outfalls included in a settlement with Arch Coal.

And think about it — the most recent financial filings from Patriot say the company was already expecting to pay $95 million to install treatment systems for just four outlets at two of its mines, under a 2010 ruling in which U.S. District Judge Robert C. Chambers held the company in contempt for not moving quickly enough to end its selenium pollution violations (see here, here and here for more on that case)

Attorney Joe Lovett, executive director of Appalachian Mountain Advocates, which is representing citizen groups in selenium cleanup litigation, told me today:

This is the culmination of years of work on this issue. We’re very pleased that the coal industry will have to pay the costs of its business and clean up polluted waters.

This new settlement — which I’ve posted online here — covers water pollution outlets at Patriot’s Hobet 21 complex along the Boone-Lincoln border (where selenium pollution has been previously documented here and here), the Samples Mine complex in the Cabin Creek area, and the Ruffner Mine in Logan County. According to the Sierra Club:

The settlement requires Patriot to install treatment technology on a set schedule to bring selenium discharges within acceptable levels. In addition, the company will pay penalties of $7.5 million, with the vast majority of those funds directed to the West Virginia Land Trust. Patriot will be subject to significant additional penalties for any violations that occur after the compliance date for each source of pollution.

Jim Sconyers, chair of the West Virginia Chapter of the Sierra Club, said:

Several years ago, the coal industry said that there was no way to treat selenium pollution from their mines. But now they’re agreeing to treat that pollution. This settlement, and other recent actions against Arch Coal and Alpha Natural Resources, shows that mining companies can do far more than they admit to clean up their pollution.

Dianne Bady with the Ohio Valley Environmental Coalition said:

West Virginia coal mines are finally starting to address their legacy of selenium pollution. Mine operators and regulators in Kentucky, Tennessee, and Virginia need to follow suit.

Interestingly, the deal also requires Patriot to drop any future plans for mining a major permit — and creating significant selenium pollution — at its Jupiter-Callisto Mine in Boone County, which is located near the home of anti-mountaintop removal activist Maria Gunnoe, who won the Goldman Environmental Prize in 2009 for her work to protect West Virginia mountains, streams and communities.

Cindy Rank, mining chairwoman for the West Virginia Highlands Conservancy, said:

Although treatment may be sufficient to address these existing selenium problems, ultimately the industry and regulators need to recognize that it’s not appropriate to mine coal where disturbing selenium laden rock strata will release harmful amounts of pollution.

UPDATED: Here is a statement just issued by Patriot Coal —

Patriot Coal Corporation (NYSE: PCX) today announced that it has entered into a consent decree with the Ohio Valley Environmental Coalition, Inc., the West Virginia Highlands Conservancy, Inc. and the Sierra Club to resolve claims under the Clean Water Act relating to Patriot’s mining activities in West Virginia.

“Selenium is an issue that many companies involved in coal mining must confront.  Today’s settlement by Patriot represents a strategic response to this challenging issue.  We are pleased that this settlement provides a comprehensive framework for Patriot to address selenium across our properties going forward,” stated Patriot President and Chief Executive Officer Richard M. Whiting.  “We believe the consent decree serves the interests of both the public and our stockholders.”

As a result of the negotiated settlement, the Company has agreed to a comprehensive plan which provides for the necessary time and flexibility in the development, selection and implementation of emerging technologies to meet compliance deadlines in the future.  To resolve claims related to the consent decree, the Company will pay $7.5 million in civil penalties, to be allocated between the federal government and the West Virginia Land Trust for land preservation projects within the Kanawha River and Guyandotte River watersheds.

The consent decree, which has been filed with the U.S. District Court for the Southern District of West Virginia, is subject to a public comment period and must be approved by the Court before it becomes effective.

27 Responses to “Breaking: Patriot agrees to huge selenium cleanup”

  1. Bruce Nilles says:

    Coal’s reign is coming to an end. Ninety coal plants since 1/1/10 have retired or announced to retire. This is 11 percent of all the installed coal capacity in the United States. Not a single new coal plant broke ground in 2011. The one coal plant that was completed in 2011 – Spiritwood in ND – cost $400M, and is not running b/c it is too expensive. Today’s Energy Information Agency report show’s coal use continuing to shrink as wind and natural gas come in cleaner and cheaper. These trends are not going to change.

    As others have said so eloquently, we can pretend the world is not changing, not prepare for the transition, and hurt a lot of people in the process, or we can with our eyes open fashion a speedy transition that is fair and equitable to all involved, including coal miners and their families, and the folks living next to and downwind and downstream from health-threatening coal mines, coal plants, and coal ash ponds. Here at the Sierra Club we are working hard on this latter option, but it ain’t easy when our state officials and industry leaders have yet to find the courage to join this conversation.

  2. coalfire says:

    I’m waiting for the day when the Sierra Club makes a mistake and someone can sue them. They are gambling with people’s livelyhood without regard to them. Shame on them.

  3. Marilyn says:

    It is indeed sad, the industry tried to game the system and not comply with existing standards and processes that would have reduced environmental harm, and now they will finally pay…after many affected people have already paid with their health. If the industry just complied in the beginning, much of this would have been avoided. They got away with stuff for so long that they thought they were above the law. There are many players to blame in this enabling drama…the industry, government officials who for so long looked the other way, and many citizens as well.

  4. EnviroSci says:

    A couple of coal industry “insiders” told me that Patriot is not in especially good financial condition and that this settlement may force them into bankruptcy. Assuming the worst case scenario being that they totally go under (not unprecedented in WV’s coal industry) and no one steps up and acquires the assets and liabilities, then the job of “cleaning up” the selenium would fall to WVDEP. Question is: when forced to do so, who is better at cleaning up coal related messes-industry or WVDEP?

  5. Ken Ward Jr. says:

    Folks,

    I have a couple of responses to reader comments —

    — Marilyn, you wrote, regarding selenium pollution from strip mining:

    “… After many affected people have already paid with their health.”

    Actually, I don’t think the issue with selenium is its impact on HUMAN health, but its clear impact on fish and other aquatic life, based on the government reports and scientific studies that have been published. If you have some specific evidence linking selenium to the human health issues being experienced in the coalfields, please post links or citations.

    — To EnviroSci,

    You wrote:

    “… when forced to do so, who is better at cleaning up coal related messes-industry or WVDEP?”

    The clause at the beginning is the issue — “when forced to do so” … neither does a very good job at all, until someone (usually citizen group lawyers) forces them to do something.

    Ken.

  6. Ken Ward Jr. says:

    coalfire,

    You wrote, regarding the Sierra Club:

    “They are gambling with people’s livelyhood without regard to them.”

    What are you talking about? The company in this case agreed to the settlement, and has provided no indications that any jobs will be affected by this.

    Please provide more specific information to support your allegations.

    Ken.

  7. Bo Webb says:

    It amazes me as to how much money coal companies are willing to spend on legal fees to defend violations. Seems to me that following the law would be better for them in the long run. These types of suits may help perusade them to favor that notion.
    As Ken stated, selenium settlements do not address the human health issues realted to mtr. For that, we problably need a different group of attorney’s, similar to those that took on the tobacco industry.
    Coalfire and others of Coalfire’s position may get a better understanding of the reality of coal if they would just open their minds a little more. Read the second paragraph of Bruce Nile’s comment above; that is reality.

  8. Ken Ward Jr. says:

    Bo,

    You wrote:

    “As Ken stated, selenium settlements do not address the human health issues realted to mtr. For that, we problably need a different group of attorney’s, similar to those that took on the tobacco industry.”

    What I was questioning was whether the issue with the selenium violations was that selenium levels in the water below mountaintop removal mines was affecting human health (as Marilyn suggested it was).

    In fact, forcing coal companies to internalize all of the costs of doing business will — in the long run — have the impact of reducing the other effects (those on human health) that you are rightly most concerned about. Witness the part of the settlement here in which Patriot agrees not to resurrect the permit near Maria Gunnoe’s home. Read the quote from Cindy Rank from the post above:

    “Although treatment may be sufficient to address these existing selenium problems, ultimately the industry and regulators need to recognize that it’s not appropriate to mine coal where disturbing selenium laden rock strata will release harmful amounts of pollution.”

    And, as you know, there are a variety of lawyers taking on cases about coal’s impact on public health — those doing the Rawl water case and the Prenter water case are just two examples.

    Finally, please go back and re-read the comment policy for Coal Tattoo, especially this part:

    “Be respectful of others, especially those your disagree with — this includes other readers and commenters , public officials, and even coal industry executives.”
    http://blogs.wvgazette.com/coaltattoo/comment-policy/

    I would ask you to try as best you can to refrain from personalizing your comments with remarks like this:

    “Coalfire and others of Coalfire’s position may get a better understanding of the reality of coal if they would just open their minds a little more.”

    Please, at least on this blog, speak with respect to and about those you disagree with.

    Thanks as always for contributing to this blog’s continued discussion.

    Ken.

  9. To Coalfire’s point: If anything, this settlement will create jobs. The millions upon millions of dollars spent treating this pollution, after all, will be flowing into some company’s (or several companies’) bottom line. People will be paid to design the treatment systems and workers will be needed to put the treatment systems in place.

  10. Ken Ward Jr. says:

    Dan,

    Has your organization come up with an estimate of how many new jobs would be created in this manner, how much those jobs would pay, and where those jobs would be located (designing the treatment systems, for example, would not necessarily have to be done by workers in WV)?

    Ken.

  11. Ken,

    That’s a good question. I’ll look into it, but as far as I know, we haven’t done that kind of estimate. It would be very interesting to do, though.

  12. Bo Webb says:

    Ken, what the heck are you talking about? If my comments are taken as disrespectful then there is something very wrong going on. Talk about thin skin. What I was saying, Ken, is that as with the tobacco industry it would be good to have a group of lawyers that focused on the ongoing health research. Of course this settlement is very helpful for one community, and that’s great. If you’re aiming to take every commnet I make out of context then there’s no good reason to comment. I don’t want to take anything away from this research, it’s great work. I thought this blog was for thoughtful exploring conversation. These types of lawsuits do not address human health directly and they certainly do not address the health of specific people that have been victimized. The lawsuits are good though.

  13. Ken Ward Jr. says:

    Bo,

    I’m talking about your comment, aimed not at me but another commenter:

    “Coalfire and others of Coalfire’s position may get a better understanding of the reality of coal if they would just open their minds a little more. Read the second paragraph of Bruce Nile’s comment above; that is reality.”

    I’m just gently (I said please) asking that you not personalize the conversation by telling another reader they need to “open their mind”.

    It would have been more respectful (and probably more effective) to write something like this:

    “Coalfire, you might take a look at the second paragraph of Bruce Nile’s comment above. I’m wondering how you square those comments with your criticism of the Sierra Club.”

    The blog policy on these comments isn’t about anybody having a think skin, or about not being able to speak your mind, even forcefully, or not being able to disagree with anyone else. It’s about trying — almost always in vain — to maintain even a tiny little bit of politeness in our discussion. I realize that’s not what most interest groups on any side of any issue — and certainly not their PR people — think is the way to get the public’s attention. But it’s the way me and my bosses have decided to run this blog. I realize it doesn’t make me popular, but that’s the way it is.

    Bo — you’ve been given a lot of leeway in your comments and I appreciate your continued participation. My apologies if my efforts to keep things calm sometimes seem a little random. I’m doing the best that I can with it.

    As far as lawyers and the health research, it’s of course important for everyone else to remember — as Bo certainly knows — that the same lawyers who handled this Patriot case are trying to get the WVU health studies in front of a federal judge right now in a case over an Alpha permit … we’ll see how that goes.

    Ken.

  14. William says:

    How come the surface miners don’t have health problems looks like the would be the 1st one to get health problems

  15. Bo Webb says:

    William, I’m not sure they are not experiencing health problems. Some may and some may not. I cannot say this with certainty but it’s my belief, from what I’m witnessing, is that people living in mtr communities are exposed to the fallout from blasting 24 hours a day, day after day, week after week, month after month, year after year now for at least the past 12- 15 years. That cumulative and constant exposure may be the cause for some of these illnesses. Some surface miners live in mtr communities but I don’t believe the majority of them do. The health research that has been done begs for more research. It is being shown that people living (not necessarily working) in mtr communities are suffering greater ill health effects than those that do not live in mtr communities. To me that in itself should trigger a call from our elected leaders to find out what is causing ill health in these areas.

  16. Ken Ward Jr. says:

    In fact, surface-mine workers do face serious health risks, as was reported quite some time ago by the Courier-Journal in Louisville, http://www.courier-journal.com/cjextra/dust/frame_cheat.html

    The most dangerous job in coal mining may not be underground.

    Miners who spend at least 20 years as strip-mine drillers have a 61 percent chance of contracting silicosis, a virulent form of black lung. No other job in coal mining has such a high risk.

    That number is based on a government-sponsored study of surface miners in western Pennsylvania’s bituminous coalfields. The study is supported by other recent surveys of surface miners, and the startling results have researchers and government officials worried.

    “The disease rates we found among drillers were simply unacceptable,” said Joe Cocalis, an industrial hygeinist with the National Institute for Occupational Safety and Health (NIOSH). “We’ve got a damn epidemic on our hands that is 100 percent preventable.”

    Ken.

  17. Yogi says:

    I would rather see them fund sewer lines to get the sewage out of the coal river watershed than selenium…plus why are the Selenium limits for mining more stringent than for drinking water?

  18. Bo Webb says:

    Yogi, do you have proof that someone is dumping raw sewage into the Coal River? If you do please report them to the WV DEP.

  19. Steve says:

    These selenium treatment plants may take a few people to construct but the running of the plant itself won’t create but a few jobs. They will be located at impoundments or water discharges. I’ve seen pictures of a hugh one in Virginia that sells its by-product to the state who then treats roads with it in the winter, I’ve been told. If this is true, then it goes right back in the streams. Kind of ironic.

  20. Ken Ward Jr. says:

    yogi,

    selenium limits are set to protect aquatic life, which is one of the purposes of the Clean Water Act.

    And Bo, I don’t think there’s any doubt that sewage discharges are a problem in the Coal River watershed … here’s one story from our 2005 series on the Coal that notes that issue:

    River needs major cleanup Mining pollution in Coal River

    Publication: THE CHARLESTON GAZETTE
    Published: Wednesday, September 28, 2005
    Page: P1A
    Byline: Ken Ward Jr.

    kward@wvgazette.com Mining operations along the Coal River need to cut their toxic metal discharges by nearly two-thirds to meet pollution limits, according to a draft state cleanup plan being released this week.

    Coal mines need to eliminate nearly 2.5 million pounds per year of iron, aluminum and manganese that they pour into the Coal and its tributaries, according to the state Department of Environmental Protection proposal.

    “Reductions in discharges from mining operations are an important part of this picture,” said Dave Montali, who coordinates stream cleanups for the DEP Division of Water and Waste Management.

    To clean up the Coal, DEP officials say that the state also needs to eliminate raw sewage discharges, reclaim abandoned coal mines and reduce runoff of contaminated sediment.

    “It’s a combination of all sorts of kinds of things,” Montali said of the Coal’s pollution problems.

    This week, DEP is holding a series of community meetings to unveil its proposed Coal River cleanup plan. The first meeting was scheduled for Tuesday night at Sherman High School in Seth. Additional meetings are planned for 7 p.m. today at St. Albans High School and 7 p.m. Thursday at Scott High School in Madison.

    Details of the DEP’s cleanup plan are available online at http://www.dep.state.wv.us/item.cfm?ssid=11&ss1id= 719.

    Comments on the draft DEP plan are being accepted through Oct. 17.

    Over the last two years, the Coal River’s problems and potential have gotten increased attention, including the formation of a new group working to protect parts of the watershed closer to Charleston.

    Issues surrounding the river were highlighted in a 2004 series of Gazette articles, available online at wvgazette com/section/Series/Coal+ River:+Problems+and+ potential.

    The Coal River watershed drains nearly 900 acres in southwestern West Virginia, mostly in Boone and Raleigh counties. From its headwaters to the mouth at St. Albans, the Coal includes more than 1,118 miles of streams.

    Previously, DEP has said that more than 125 of those streams – flowing for about 600 miles – are impaired by various types of pollution.

    The new DEP plan is called a Total Maximum Daily Load. Under a federal court lawsuit settlement, state officials are writing hundreds of TMDLs to clean up state waterways that are polluted beyond their legal limits.

    DEP officials say that one of the Coal’s biggest problems is excess levels of raw sewage being discharged into the river’s many tributaries.

    “There are a whole lot of sewage issues all over the place,” Montali said. “They only thing we can do is encourage the expansion of public treatment works.” But the coal industry itself is also a major problem, DEP says in its new report. Active and abandoned mining are linked to excess levels of acidity and toxic metals, including aluminum and iron.

    To fix those problems, dozens of active mining permits will have to be rewritten to tighten discharge limits, the DEP report says.

    To contact staff writer Ken Ward Jr., use e-mail or call 348-1702.

  21. William says:

    I have worked on a surface mines for about 20 years now I have no health problems at all they are a few with high blood pressure and you are right about the drillers they are in the dust but blasting does not happen around the clock it only happens in day light hours major fine if a blast goes off after sundown. But if not for coal the southern part of our state would be ghost towns you have to have flat land to build on and have four lane highways if you want company’s to locate here and if we don’t MTR the coal you will not have that

  22. Dianne Bady says:

    Yogi said that he would “rather see them fund sewer lines to get the sewage out of the coal river watershed than selenium”

    We also would like to see the sewage problems fixed throughout southern West Virginia, and so would the lawyers who have been bringing all of the selenium lawsuits.

    In fact,the settlements negotiated in these selenium cases have included funding to the WVU law school and the WV Land Trust, in part for the purpose of finding ways to fund and fix straight-pipe sewage pollution. It will take time for the outreach portion of this project to begin, but there will be a major effort to find government funding and citizen involvement to work on this serious problem.

  23. guinstigator says:

    William, we do not need mtr. As a matter of fact, the world, and WV, would be better off without it. Destroying the environment so some people can have jobs, while others who actually live in the affected area, enjoy a wealth of health problems. is not a fair exchange. As to the fact of ghost towns, far too much of WV is already a ghost town. The fact that coal companies worked hard to keep other jobs out of towns near coal mining and coal extraction, such as mtr, which is not mining, but destroying perfectly good mountains for the wealth of a few, has lead to many people having to live in poverty while coal companies and employees make money, shows how coal companies have no regard for the people who live in the area, only for money the coal represents to them.

  24. Ken Ward Jr. says:

    Good point Dianne, thanks.

  25. vnxq809 says:

    Pretty harsh rhetoric from Guinstiagtor….

    “coal companies work hard to keep other jobs out of towns near coal mining & coal extraction”…Really? Do you have any particular instances to cite?

    “coal companies have no regard for the people who live in the area”

    Methinks you brush w/ a very large brush…

    Vnxq809

  26. William says:

    I think u can mtr and have a balance but as the raw sewage drive up rt 44 jerry west highway in Logan county you will see sewage going into the creek. Think of the jobs that mtr has done for Logan you have the wood plant which is in mingo county the conveintion center and the jail is all built on former mtr sites. And if living near a mine causes cancer then Boone county should led the united states

  27. Ken Ward Jr. says:

    OK, folks … this discussion has about worn itself out. Thanks everybody.

    Ken.