Coal Tattoo

EPA taking closer look at Coal River Mountain mining

An interesting development just in concerning Massey Energy’s Bee Tree Mine, the Southern West Virginia operation where environmentalists had hoped to put a wind energy facility instead of a mountaintop removal job.

U.S. Environmental Protection Agency officials are investigating the Bee Tree site, examining Massey’s operation there without first obtaining a “dredge-and-fill” permit under Section 404 of the federal Clean Water Act.

Yesterday, EPA regional officials in Philadelphia sent this letter to Massey’s Marfork Coal Co. subsidiary, seeking a long list of information about the Bee Tree operations.

Recall that Massey made a change in its surface mining permit from the state that the company apparently believed allowed it to — at least at this point — not need a 404 permit that could face EPA scrutiny before it would be approved by the federal Army Corps of Engineers. Massey had applied for a 404 permit, but then withdrew that application.

According to the new EPA letter, federal officials visited the site earlier this month and now are concerned that the site does need a 404 permit. The letter cautions Massey:

The activities underway at the site do not appear to have independent utility from the proposed mining project that is the subject of the Section 404 permit application. EPA is concerned that Marfork Coal Company may be committing signficant resources and conducting operations in reliance on a Section 404 permit that has not been issued. The Corps has not yet made a determination of jurisdictional waters and we have some concern that ongoing activities at the site could impact such waters if sufficient precautions are not exercised.

Updated:  Massey General Counsel Shane Harvey tells me the company has received EPA’s letter and is reviewing it.

Coal decline: It’s the shale gas, West Virginia

COAL TRAIN

A CSX train loaded with coal winds its way into the mountains in this photo taken near the New River at Cotton Hill in Fayette County, W.Va.  (AP Photo/Jeff Gentner)

There’s an important new study out that goes to the heart of the political discussion in West Virginia about the coal industry’s decline. Here’s the press release from the authors at Case Western University:

Cheap shale gas produced by fracking has driven the decline in coal production in the United States during the last decade, researchers at the Great Lakes Energy Institute at Case Western Reserve University have found.

Power plants, which use 93 percent of the coal produced nationally, have been operating under the same EPA regulations signed into law by President George H.W. Bush in 1990. Proposed new rules since then have all been challenged in court and not implemented until June 2016, when the EPA’s restrictions on mercury and other toxic emissions were approved by the U.S. Supreme Court.

Consumption of coal continued to grow under those 1990-era EPA rules until 2008, and then went into steady decline, dropping by 23 percent from 2008 thru 2015.

The data show the drop in those years to be correlated with the shale revolution, as natural gas production increased by a factor of more than 10 and its price dropped in half, the researchers say. And, due to the continuing–and in some cases accelerating–technological and economic advantages of gas over coal, the decline in coal is expected to continue at least decades into the future.

Mingguo Hong, associate professor of electrical engineering and computer science at Case Western Reserve and co-author of the study, said:

Some people attribute the decline in coal-generated electricity to the EPA’s air-quality rules, even calling it ‘Obama’s war on coal . While we can’t say that the EPA rules have no impact — as, for example, discouraging the building of new coal power plants because of the expectation that tougher air-quality rules will clear the courts — the data say the EPA rules have not been the driving force.

Hong and co-author Walter Culver, a founding member of the Great Lakes Energy Institute Advisory Board at the university, say the data show that shale-gas competition is what’s been hurting coal as of today. They expect that, as wind and solar sources of electricity continue to improve, they will be tough competitors to coal in the not-distant future. According to Culver:

If you’re a power plant operator and you see gas supply is continuing to increase and natural gas can do the job cheaper–by a lot–the decision to switch from coal is pretty easy. As we look toward the future, we see no natural mechanisms that will permit coal to recover.

Jim Justice

 

Maybe we should just be glad that the U.S. Environmental Protection Agency put out its press release on the water pollution deal with Jim Justice’s companies fairly early on a Friday afternoon, instead of waiting until just before 5 p.m. And oddly, inquiries about this issue were answered far more promptly — and with actual straight answers — than anything else I’ve dealt with the Obama EPA about over the last eight years.

It is a pretty significant story, and it seems hard to imagine it’s not going to quickly become part of the back-and-forth of this year’s gubernatorial campaign. Republican Bill Cole’s people will point to it with statements like this:

Mountain Party candidate Charlotte Pritt’s followers will say the whole thing just shows how Justice is just another coal operator and there’s no difference between Cole and Justice (for those who really are trying to understand if there are differences, former Gazette-Mail political reporter David Gutman gave that story a pretty good shot here).

Just to clear up the facts:  The feds didn’t fine Justice $5 million. The fine in this case was $900,000. His companies are required to put up a $4.5 million letter of credit to ensure funding of new pollution control efforts. EPA says in all those efforts will cost $5 million, and Justice has already spent $500,00. So that’s where the $6 million figure in our story comes from. You can read the consent decree here and the EPA complaint here.

It’s fascinating to watch people who are more interested in partisan politics than in environmental protection (or workplace safety compliance) chatter about this particular story on Jim Justice. Where are their cries that the jackbooted thugs from EPA should let little poor ol’ Jim alone? I’m confused — do we want a strong federal enforcement agency to keep coal industry politics from controlling things, or should the feds leave us alone to run things as we see fit?

Readers who follow these things more closely than the career campaign consultants do will know that these kind of settlements between EPA and major coal producers have not been unusual things. EPA has reached deals in recent years with CONSOL Energy (here and here), Arch Coal (here and hereAlpha Natural Resources, and Patriot Coal, among others. And yes, most of the time, the state Department of Environmental Protection takes part with EPA as a co-plaintiff, a move that allows it some say in the litigation and some share of the fine. In this instance, WVDEP could have pocketed maybe $90,000 from the settlement, if the one-half of the fine going to states had been split five ways instead of four.

Going back through those settlements, the only one I see in West Virginia that the WVDEP didn’t take part in was the one back in 2008 with Massey Energy (see original coverage of that here, here, here and here).

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Sometimes victories are so rare for the people of the coalfields that it’s tempting to jump on just about anything to try to celebrate some movement forward. At least it seemed that way this last week or so.

Take the announcement on Monday by the Kanawha Forest Coalition, described in the Gazette-Mail by Rick Steelhammer:

A two-year struggle by the Kanawha Forest Coalition to halt a strip mine operating adjacent to Kanawha State Forest has ended in a bittersweet victory for the citizens group, after the West Virginia Department of Environmental Protection ordered a permanent end to mining at the Kanawha Development No. 2 Mine.

Under the terms of a DEP consent order signed late last month after a year of negotiations between the coalition and the permit holder, Keystone Industries of Jacksonville, Florida, “no additional mineral removal activities may occur” on the 413-acre surface mine permit. “Activity is exclusively restricted to actions necessary to achieve phased release of the permit,” including rebuilding sediment ditches that are leaking or that contain acidic material, and mapping the locations of containment areas for selenium-bearing or acidic materials, according to the consent order.

Bittersweet for sure. On the one hand, this situation certainly showed how citizens can play a vital role in enforcement of the federal surface mining law. And how DEP– in this case especially its inspection and enforcement staff — can do right by the citizens, especially if the citizens focus on the science and the law and are honest advocates, playing it straight with the many allies they have inside the agency, and don’t let up.

But the question that can’t be avoided here — not if any lesson is to be learned — is why in the world did the DEP issue this permit in the first place? Citizens opposed the permit. They appealed it. They warned that something about like what ended up happening was likely to happen if DEP pushed forward.

secretary-randy-huffman-portrait_small2Hopefully, DEP Secretary Randy Huffman is asking his staff some hard questions about how the permit review process — not to mention the appeal process (in which sometimes agency lawyers act like they’re defending a murder case, making the litigation far more adversarial than it need be, given that the public is the ultimate client) — was handled in this instance.

DEP staff are human and can make mistakes (like writing congressional testimony that throws environmental justice under the bus or advocating a rule that cuts off important avenues for public involvement, or underestimating public concern  about or forgetting the long history and context of a rulemaking about cancer-causing chemicals in our rivers and streams) that aren’t always the result of politics or agency capture or something like that. Sometimes DEP officials just disagree with citizens, though – and sometimes citizens don’t do as good of a job as they might making their case.

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Can Trump save coal and support natural gas?

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The view that electing Donald Trump as president will save West Virginia’s coal industry and return us to mining’s glory days was on display again in today’s Gazette-Mail, in a piece by David Gutman about Sen. Shelley Moore Capito’s support for Trump. Here’s the bottom line:

“I am looking at our state, my state, that’s the principal-view lens at which I’m viewing this election,” Capito said in an interview at Charleston’s historic Craik-Patton House on Monday. “I mean, I’ve lived in this state my entire life. I’m 62 years old. I’ve never seen such pessimism, lack of vision for a future, really concern about where is that next generation going to go.”

“I’m laying a lot of this at the doorstep — not totally, but a lot of this at the doorstep — of the policies of the last eight years,” Capito said. “I can’t, I cannot stomach that. For where I live, it’s not a good future.”

In many ways, West Virginia weathered the financial crisis and ensuing recession better than most states in the last years of the George W. Bush administration and the first years of Obama’s presidency. More recently, though, West Virginia’s economy has been in a tailspin as the population shrinks and ages, fossil fuel prices plummet and a combination of cheap natural gas, depleted seams and federal regulation decimate the coal industry.

But a couple recent pieces by writer Tina Casey at CleanTechnica.com have raised some interesting questions about all of this.

First, there was a piece headlined, “The Donald Trump Coal Plan Vs. The Donald Trump Fracking Plan,” which started out like this:

Industry analysts widely agree that coal consumption in the US has been declining in recent years, primarily because of competition from low cost natural gas for electricity generation. Renewable sources have been a far less significant factor, and they are only just beginning to weigh in more.

Low cost gas is a side effect of the domestic shale fracking boom, which was touched off by a loophole in environmental regulations created under the Bush Administration.

So, blame President Bush for the decline in domestic coal consumption. The loophole has crippled the Obama Administration’s efforts to bring the fracking industry under the regulatory umbrella of the EPA, and this lack of oversight has helped to keep gas costs down.

The piece continued:

Longstanding federal restrictions on exporting natural gas have also played a role in the domestic gas glut, though the Obama Administration has made some cautious steps toward enabling more exports.

Coal supporters like Capito have been especially fond of nailing President Obama’s energy policies for the decline of coal in West Virginia and other states in the Appalachia region, but the fact is that Appalachian coal faces a triple whammy. In addition to new competition from natural gas for the domestic market, it also has to compete with coal from Wyoming’s Powder River basin, and compete globally with Australia and other coal-exporting countries.

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The looming coal cleanup crisis

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Photo by Vivian Stockman, Ohio Valley Environmental Coalition.

Earlier this week, The New York Times had the latest of the recent national stories to take a stab at explaining the impending crisis regarding the cleanup of decades of pollution problems related to coal mining. The Washington Post had its own version of this story a few months ago.

Here’s a couple of the “nut graphs” from the Times piece:

Regulators are wrangling with bankrupt coal companies to set aside enough money to clean up Appalachia’s polluted rivers and mountains so that taxpayers are not stuck with the $1 billion bill.

The regulators worry that coal companies will use the bankruptcy courts to pay off their debts to banks and hedge funds, while leaving behind some of their environmental cleanup obligations.

The industry asserts that its cleanup plans — which include turning defunct mines back into countryside — are comprehensive and well funded. But some officials say those plans could prove unrealistic and falter as demand for coal remains weak.

The Post summarized the situation in a similar way:

A worsening financial crisis for the nation’s biggest coal companies is sparking concerns that U.S. taxpayers could be stuck with hundreds of millions, if not billions, of dollars in cleanup costs across a landscape of shuttered mines stretching from Appalachia to the northern Plains.

Worries about huge liabilities associated with hundreds of polluted mine sites have mounted as Peabody Energy, the world’s largest publicly traded coal company, was forced to appeal to creditors for an extra 30 days to pay its debts. Two of the four other biggest U.S. coal companies have declared bankruptcy in the past six months.

Under a 1977 federal law, coal companies are required to clean up mining sites when they’re shut down. But the industry’s plummeting fortunes have raised questions about whether companies can fulfill their obligations to rehabilitate vast strip mines in Western states — many of which are on federally owned property — as well as mountaintop-removal mining sites in the East.

It’s great that these issues are getting national attention. But this attention is long overdue. And one thing that is a bit worrisome is that there is a tone in the stories that sometimes makes it seem like this all came out of nowhere — that no one possibly could have imagined this crisis.

That’s just not true.

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As the GOP takes over, what now for the coalfields?

Shelley Moore Capito

West Virginia Republican Senate candidate Rep. Shelley Moore Capito speaks after winning the Senate seat, Tuesday, Nov. 4, 2014, at the Embassy Suites in Charleston W.Va. (AP Photo/Tyler Evert)

The election returns are in. Republicans have taken Sen. Jay Rockefeller’s Senate seat. They finally beat Rep. Nick J. Rahall, and a guy from Maryland defeated Nick “Not our problem” Casey. If that weren’t enough, Republicans have won control of the House of Delegates and pushed the state Senate to a 17-17 split.

So, the excuses begin, and here’s what Larry Puccio, chair of the state Democratic party, told the Gazette’s Phil Kabler last night:

We know the people of West Virginia, whether Democrat, Republican or independent, were not pleased with Barack Obama’s policies, and they came out and showed it today,” Puccio said. “I think they’ve hurt the people of West Virginia in doing so, but they sent a very powerful message.”

Puccio said he thought voters would make a distinction between their displeasure with the president and with Democrats in their local legislative races, but that proved not to be the case.

“I didn’t think, when it got down to the legislative level, it would resonate, but it clearly, obviously did,” he said.

But did it? Well, there’s no question that President Obama is terribly unpopular here. Exit polls from the nation and West Virginia showed that 58 percent of West Virginia voters strongly disapprove of the president’s job performance, compared to 42 percent of voters nationwide. At the same time, there’s a puzzling result that shows that 47 percent of West Virginia voters said President Obama didn’t factor into their vote in the U.S. Senate race, which is about the same as the 45 percent who gave the same response nationwide.

Still, here’s what Larry Puccio said in a press release today:

West Virginia was no exception in the tidal wave that swept the entire country on Election Day due to dissatisfaction with many of the President’s policies.

Those exit polls also have a bit of information about how well the Democratic strategy of trying to out-coal the Republicans turned out.  Twenty-three percent of those surveyed after voting said that someone in their households works in the coal industry, and of those, 73 percent voted for Rep. Capito over Secretary of State Tennant.

Natalie Tennant

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Photo by Vivan Stockman, Ohio Valley Environmental Coalition, flyover courtesy of Southwings.

Over the weekend, we broke the story in the Sunday Gazette-Mail about something that many insiders have known for a while: The Obama administration put the brakes on some key U.S. Geological Survey research into the public health effects of mountaintop removal coal mining in Southern West Virginia. As our story reported:

Two years ago, Bill Orem and his team of researchers were setting up air monitors in the yards and on the porches of residents in Artie, a small Raleigh County community surrounded by mountaintop removal mines.

Orem, a chemist with the U.S. Geological Survey, was trying to piece together evidence about exactly what caused residents who live near Southern West Virginia’s large-scale mining operations to face increased risks of serious illnesses, including birth defects and cancer, and of premature death.

Since starting their work, Orem’s team has added much to what was already known about the issue: Air quality in communities near mountaintop removal is quite different from air quality in non-mining areas, with more particulate matter and higher concentrations of certain contaminants. Mountaintop removal neighbors have higher rates of certain respiratory diseases, including lung cancer. Also, air pollution particles in mining communities show higher levels of certain elements that indicate the dust is coming from “overburden,” or the rock that mountaintop removal operators blast apart to get at the coal underneath.

“The data is pretty startling for some of these things,” Orem said last week. “To me, it’s compelling enough that a more targeted health study needs to be conducted in these areas.”

However, if that more in-depth study is going to ever be done, it won’t be by Orem and his USGS team. Last year, the Obama administration quietly put the brakes on any new field work to gather data on the potential public-health threats posed by mountaintop removal.

Without warning, the USGS Energy Resources Program in February 2013 pulled its funding for the project. Agency managers diverted Orem and his team to research on the health and environmental effects of unconventional oil and gas extraction, such as hydraulic fracturing in the Marcellus Shale region of Pennsylvania and Northern West Virginia.

For those who still read the paper the old fashioned way, there was quite an interesting contrast between reality and politics on Sunday’s front page. At the top left was my story about the USGS bean counters ending this important research. At the bottom of the page was David Gutman’s story headlined, “As TV ads kick off in W.Va.’s U.S. Senate race, coal is still the theme.” David reported:

Tennant Power PlantWest Virginians have seen more ads for the Senate campaigns in neighboring states than the one happening in the Mountain State. That will begin to change Monday, but the primary tenor of the campaign — promises from both candidates to stand up for coal and fight Environmental Protection Agency regulations — will not.

Democratic Secretary of State Natalie Tennant has bought about $120,000 of television time to show an ad — the first from any candidate in the race — in which she, literally, turns the lights off at the White House.

The ad, which the Tennant campaign says will reach 75 percent of West Virginians, opens on a scene of the White House with Tennant asking, “Where do they think their electricity comes from?” The camera pans to power lines leading back to a coal-fired power plant.

“You and I know it’s our hard-working West Virginia coal miners that power America,” Tennant says, as she cuts the power and the lights go out with a boom at the White House. “I’ll make sure President Obama gets the message.”

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What’s EPA up to on selenium?

Gina McCarthy

Scientists remain very concerned about the impacts of selenium discharges from coal mines on aquatic life in Appalachian streams, so environmentalists are rightly a little concerned about the latest maneuver by the U.S. Environmental Protection Agency.

Earlier this week, EPA announced in the Federal Register that it was circulating for review yet another draft of potential changes to its recommended water quality standard for selenium.  The document itself is here and EPA has also posted this “Fact Sheet” about the draft.

Taylor Kuykendall over at SNL Financial had a story on this issue, reporting it this way:

The U.S. EPA is taking comments on recommended federal water quality criteria for selenium with a focus on concentrations found in fish, a change that could disrupt the momentum of environmental groups who have used the current standard in numerous victories over the coal industry.

… Dalal Aboulhosn, the Sierra Club’s clean water policy expert, told SNL Energy that the mineral is frequently found in toxic levels in streams below Appalachia surface coal mines.

“We intend to give scientific and real world examples to EPA’s request for public comment on its proposed revised criterion for the pollutant selenium,” Aboulhosn said. “The practice of mountaintop removal strip mining has proven time and again to be completely destructive of the environment and dangerous to the health of communities living in the shadows of these massive mines.”

Operators in West Virginia and Kentucky, the two states where meeting selenium standards has caused the most headaches for coal mining companies, have sought changes to state standards in light of numerous costs imposed fighting environmental lawsuits regarding selenium. Jason Bostic, vice president of the West Virginia Coal Association, said it is “very encouraging” that the EPA is considering a standard that incorporates fish tissue concentrations.

“That’s been part of the problem with selenium now going on 20 years,” Bostic said. “There’s been a recognition within the scientific community, I think, that selenium deserved a different standard versus a water column measurement. We just couldn’t get EPA to move in that direction.”

Bostic said selenium changes chemical composition very easily and comes in many forms, making it a “very problematic” pollutant for coal operators to treat.

Now, it’s important to remember that science has also found pretty selenium discharges from mining operations are linked to serious problems for aquatic life, with a recent paper from the Proceedings of the National Academy of Science reporting that increased conductivity, sulfates and selenium concentrations in mountaintop removal-affected streams:

… Have been linked to losses of sensitive aquatic biota throughout the central Appalachians. The Mud River reservoir (located 11 km downstream of the last Hobet Mine outfall) has a very high incidence of Se-related developmental deformities in the larvae of bluegill sunfish (Lepomis macrochirus) and largemouth bass ((Mircopterus salmoides). Instances of adults with physical deformities consistent with selenium toxicity have been observed on the mainstem of the Upper Mud River.

So while it’s true that selenium lawsuits have become an effective tool for citizen groups, it’s not like the court are just ruling with those citizens for the heck of it. Selenium is a serious issue for water quality and aquatic life in the coalfields. So while Jason Bostic is pretty happy, at least initially, about this development, here’s what the folks from Appalachian Voices had to say:

EPA is proposing a more complicated system for measuring selenium. Currently, the recommended standard for selenium consists of a four-day average concentration in water of 5 parts per billion (ppb). As proposed, the new rule will primarily rely on testing for the pollutant in fish tissue, a more complex method of monitoring than stream water testing. The complexity of this new standard will make it more difficult and expensive to implement for state agencies, industries, and concerned citizens.

The new standard does include water-based testing, but increases the recommended testing period from four days to 30 days. The new standard can be adjusted for fewer days of testing, if necessary. Under that provision, the new allowable selenium concentration for a four-day time period would be seven times higher than the current standard.

If the Obama administration really is fighting a war against the coal industry, isn’t this selenium proposal a funny way to do it?

Coals War

As West Virginia voters go to the polls in today’s primary election, it’s worth remembering how many of our political leaders — and how many career campaign consultants — are continuing to act like the last election isn’t over yet. Candidates of all parties for any variety of offices are still trying to run as if the person on the other side of the ballot is President Obama.

This trend has sunk in even in the Kanawha County school board race, where candidates are touting their promise to get rid of “common core” – no doubt because some have turned it into the equivalent of “Obama Core,” despite its real roots in what some have called a corporate takeover of our public school system.  You would think some of the candidates might instead focus on explaining why they don’t think that libraries are parasites on our school system.

Obviously, this sort of nonsense continues whenever issues like coal and climate change come up in the campaigns, or whenever they come up at all. Take the story that the Gazette’s David Gutman had in the paper on Monday:

The first step in solving a problem is acknowledging that there is a problem.

Among scientists, there is virtually no debate: The earth’s climate is changing, and human activity, specifically burning fossil fuels, is causing those changes.

In West Virginia, where coal dominates political conversation and plays a big role in the economy, it’s more complicated, and politicians are reluctant to even say there is a problem.

A majority of West Virginia’s political leaders either declined to respond or gave evasive answers when recently asked a yes-or-no question, whether they thought human actions were causing climate change.

We’ve been through this exercise before, and the results this time are really no better.  You have to wonder if President Obama gave a speech about gravity if West Virginia political leaders would issue a stream of statements distancing themselves and vowing to fight it.

Seriously now, does Gov. Earl Ray Tomblin think when he’s asked a question about climate change that nobody notices that he answers as if the question was about littering or getting old junk cars out of ditches? He’s what he said about the release of the National Climate Assessment:

We understand the importance of environmental stewardship and are committed to preserving our state’s natural beauty for future generations to enjoy. It is important that we work together to develop reasonable standards that balance the environment and economic opportunity.

Of course, Gov. Tomblin isn’t running for anything this time. So what about the folks who are?  Well, here’s Rep. Nick J. Rahall, who moves ever closer to totally pretending science doesn’t exist:

We know the earth’s climate is ever changing. I believe there are a variety of factors and that those who focus their blame so intensely and entirely on our coal industry are being completely illogical.

We don’t know exactly who “those who focus their blame … entirely on our coal industry” are, but we know it can’t be the Obama administration. Because, gosh, the president’s climate action plan addresses a wide range of greenhouse pollution sources — everything from automobile exhaust to making buildings more efficient.  Maybe Rep. Rahall missed the administration’s initiative on vehicle mileage requirements, for example.

We’ve written before recently about Senate candidate Natalie Tennant’s silly comments about coal policies, and her response to David Gutman’s question was really no better:

Let me be very clear: I will fight President Obama and anyone else who tries to undermine our coal jobs. It’s not my job to argue the science. It’s my job to make sure policy solutions work for West Virginia. I refuse to accept that we have to choose between protecting our air and protecting our jobs when I know West Virginia can lead the way in producing technology that does both.

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Freedom to spill: Coal must take bad with good

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Gazette photo by Chip Ellis

My apologies for not having much to say on Coal Tattoo the last few days, especially given the huge coal-related story that’s been breaking here in Charleston and the surrounding region in West Virginia. I’ve been focusing on helping with our daily Gazette coverage, and doing several broader examinations of the underlying issues involved in the chemical spill at Freedom Industries (see here, here, here and here).

One of the really unbelievable things it that there is even a debate about whether this is a coal-related story … I mean, take a look at what we reported about Gov. Earl Ray Tomblin’s comments on this:

Also at the Saturday briefing Tomblin pushed back at a reporter who connected the ongoing water crisis to the coal industry.

“This was not a coal company incident,” the governor shot back. “This was a chemical company incident.”

On Sunday night he did the same.

“This was not a coal company, this was a chemical supplier, where the leak occurred,” he said. “As far as I know there was no coal company within miles.”

In an Associated Press account, a coal industry lobbyist took up where the governor left off:

“This is a chemical spill accident. It just so happens that the chemical has some applications to the coal industry, just that fact alone shouldn’t cause people to point fingers at the coal industry,” said Jason Bostic, vice president of the West Virginia Coal Association.

Bostic said the coal industry is very carefully regulated by the state Department of Environmental Protection and several federal agencies that ensure it is safe from the very first step in opening a mine to ongoing operations.

“The environmental risk that’s associated with coal mining, we feel it’s well regulated,” Bostic said.

One problem with all of this, of course, is that the coal industry is always very insistent that every single job — direct, indirect, induced, whatever — be counted whenever anyone discusses the positive economic impacts of the coal-mining business to West Virginia. If that’s the way the industry and its political supporters want the discussion to go, then they’ve got to own this sort of accident as well.

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Citizen groups sue EPA over Kentucky selenium rule

Gina McCarthy

Just in from the Sierra Club:

Today, community and environmental groups took action against the U.S. Environmental Protection Agency for a recent decision allowing Kentucky to weaken its water quality standards for selenium, a pollutant common to mountaintop removal coal mines. This new standard, which tests selenium levels in fish tissue instead of in rivers and streams where mine wastewater is discharged, is strikingly similar to one the Bush Administration rejected as too weak to protect sensitive aquatic species. The lawsuit alleges that the standard fails to meet protections in the Clean Water Act. 

 “There’s simply no scientific or legal justification for this EPA to approve a standard worse than one rejected by the Bush administration,” said Alice Howell, Chair of the Cumberland Chapter of the Sierra Club. “In doing so, EPA has made a bad situation much worse. The new selenium standard endangers the health of Kentucky’s already compromised waterways while opening the door for other states to do the same.”

Readers may recall that the EPA approved the Kentucky standard last month, despite strong lobbying against it by the Sierra Club and other organizations. As this press release explains:

In mid-November, the EPA allowed Kentucky to change the way it monitors selenium pollution from surface mines, a change suggested by coal industry lobbyists, who appear to be motivated by citizen groups’ successful enforcement of the existing protections elsewhere in the region. 

Selenium pollution is known to accumulate in fish and aquatic wildlife over time, causing deformities and reproductive failures. When a coal company destroys a mountain to get at the coal underneath, much of what’s left is dumped into nearby valleys and streams. This pollutes the local waterways with selenium, among other substances that pose a threat to fish and humans. Valley fills are a major source of the selenium pollution found at mountaintop removal mines.

Sierra Club described the new lawsuit this way:

First, EPA violated the Clean Water Act by allowing Kentucky to institute a scientifically indefensible standard that fails to protect sensitive wildlife. Second, both citizens and EPA raised concerns about the difficulty of implementing a fish tissue based standard, yet EPA approved this standard based on a vague letter from Kentucky officials about how the new standard would be enforced. Kentucky’s assurances are not part of Kentucky state law and are thus unenforceable; therefore, EPA is not entitled to rely upon these assurances in approving the new standard.

You can read the complaint for yourself here.

 

EPA approves industry-backed selenium rule for Ky.

Gina McCarthy

Here’s some news just released by the Sierra Club:

Today, the Environmental Protection Agency allowed the Kentucky Department of Environmental Protection to change how toxic selenium pollution from mountaintop removal mines is measured for the purposes of determining compliance with the Clean Water Act. Selenium, which causes significant biological damage to fish native to the waters of Appalachia, is a toxic pollutant discharged from valley fills into rivers and streams below mountaintop removal sites. The EPA-backed changes to how Kentucky measures selenium pollution allow the state to rely on an impractical and complicated test of tissue samples from fish rather than the current practice of directly sampling the water discharged below mountaintop removal mines and other selenium sources.  EPA’s capitulation gives a free pass to industry and will allow unacceptably high levels of selenium pollution to continue flow into Kentucky’s waterways.

We’ve discussed this issue before on Coal Tattoo here and here, and you can read the EPA decision letter for yourself here. And of course, selenium remains a major issue in West Virginia, with the passage of industry-backed legislation earlier this year.

COAL TRAIN

A C.S.X. train loaded with coal winds its way into the mountains in this Nov. 21, 2004 file photo taken near the New River at Cotton Hill in Fayette County, W.Va. (AP Photo/Jeff Gentner)

The ever-helpful Wonkblog at The Washington Post has a good piece out this week with the simple headline, “Here’s why Central Appalachia’s coal industry is dying.” Obviously, these are issues we’ve talked about many times before here on Coal Tattoo and in the Gazette (see here, here and here, just for example). But it’s instructive to see Brad Plumer break it all down. He writes:

First, as Patrick Reis reported over at National Journal, coal jobs in West Virginia and Kentucky have been vanishing for decades — long before Barack Obama became president … Why have Kentucky and West Virginia lost 38,000 coal jobs since 1983? For one, coal mining has become increasingly automated in recent decades, particularly as companies have shifted to techniques such as mountaintop-removal mining, which are less labor intensive. (An EPA crackdown on mountaintop removal in 2009 actually led to a small bump in coal employment in West Virginia.)

Another big problem for Appalachia’s coal industry has been competition from cheaper, low-sulfur coal out West — particularly from Wyoming’s Powder River Basin … On top of everything else, Central Appalachia’s coal now appears to be running out, as many of the thick, easy-to-mine seams have vanished. The Energy Information Administration estimates that coal production in eastern Kentucky and West Virginia will soon be just half of what it was in 2008, plunging from 234 million tons down to 112 million tons in 2015.

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The piece also addresses the trends impacting the broader coal industry beyond our region:

And this is all before delving into the pressures that the entire U.S. coal industry is facing. A combination of cheap natural gas from shale fracking and new pollution regulations from the EPA have been elbowing aside coal in the electricity sector …

So far, the coal-mining industry has weathered this storm by exporting more coal abroad, especially to Europe. But the future for coal exports is murky. Environmentalists have protested planned export terminals in the Northwest. And analysts at Goldman Sachs think the overseas market for coal — particularly in China — could stagnate in the years to come.

That means the U.S. coal industry as a whole is facing pressure from a variety of fronts — both regulatory pressures and competition from cheaper sources like natural gas. (There was also the Sierra Club’s “Beyond Coal” campaign in the 2000s, which was particularly effective at blocking new coal plants.) Yet Appalachia is particularly vulnerable, in part due to headwinds that have been gathering strength for decades.

Brad also delves into what this means for the coalfields, both in terms of short-term jobs losses and hardships, and in terms of long-term potential, noting one recent national media report about the impact of coal’s decline, and opines:

Some experts have suggested that Central Appalachia could eventually thrive from shifting away from its single-minded focus on coal. The Downstream Strategies report observes that the region has a wealth of clean-energy resources, from wind to solar to sustainable biomass. West Virginia, for one, is looking to get into shale-gas drilling. Still, it’d be a mistake to gloss over how disruptive — and painful — that transition could be. Just look at Detroit’s struggles in shifting away from its longstanding reliance on the auto industry.

And, so far, the federal government hasn’t helped much. Here’s a telling line from Suzy’s piece: “[Obama] promised in June to ‘give special care to people and communities that are unsettled by the transition’ to cleaner energy. But so far, little extra help has arrived in eastern Kentucky.”

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The decline of coal and W.Va.’s budget shortfall

COAL TRAIN

A C.S.X. train loaded with coal winds its way into the mountains in this Nov. 21, 2004 file photo taken near the New River at Cotton Hill in Fayette County, W.Va.  (AP Photo/Jeff Gentner)

It’s always interesting to see how coal industry officials will jump to use any little tidbit in the media to try to make their argument that the Obama administration’s “war on coal” is somehow unfairly punishing West Virginia, destroying coalfield communities and dismantling our state budget in the process.

Some folks are doing that today with parts of Gazette statehouse reporter Phil’s Kabler’s latest effort at covering the state budget, in which Phil told us:

Based on current revenue projections, legislators will need to cut spending by about $80 million in the state budget that begins next July, and that budget gap is projected to grow to $265 million for 2015-16, state Budget Office Director Mike McKown told legislators Monday.

“The way you do that is to cut budgets or to raise taxes, and there’s no appetite to raise taxes,” McKown told a legislative interim committee.

Here’s the part about the coal industry:

… The state economy of late has been flat, primarily because of declining coal sales, he said.

For the first three months of the 2013-14 budget year, tax collections are down 3.4 percent.

“As long as our revenues are flat and our expenses go up, we’re getting into structural problems with our budget,” McKown said.

Electrical power plants are converting from coal to cheaper, cleaner natural gas, and while the state collects a 5 percent severance tax on each source of energy, statewide coal sales last year were about $8 billion, while natural gas sales totaled only about $2.3 billion, McKown said.

Severance taxes account for about 11 percent of the state’s general revenue budget, he said.

Also, natural gas production is much less labor-intensive, McKown said, pointing out that consumer sales taxes and personal income taxes combined account for 72 percent of the state budget.

“Coal miners make a lot of money, pay a lot of income taxes, and buy a lot of things,” he said, outlining the impact of declining coal employment on the budget.

Fair enough. There’s simply no question that the coal industry has a big impact on our state’s economy and, especially, on the state government budget.  In a coal industry-sponsored study published in 2010, researchers from WVU and Marshall documented this impacts. Of course, that’s not the whole story. Downstream Strategies explained in a separate report that the coal industry actually costs the state government budget more than the industry provides to the state.

But the media reports  don’t exactly tell the full story about the current budget situation. They leave out some important facts that would help readers understand that a big hunk of the budget problems West Virginia officials now face are really self-inflicted ones. For example, as the West Virginia Center for Budget and Policy has tried to explain, state leaders decided to phase out the business franchise tax and reduce the corporate net income tax rate. The center warned back in early 2011:

Because the Legislature did not replace the lost tax revenue with corresponding tax increases, it will become increasingly harder for the state to fund services and programs.

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There’s an important new ruling out from U.S. District Judge Robert C. Chambers addressing the continuing efforts by West Virginia political leaders to help the coal industry avoid controlling the pollution from their operations.

The ruling, released yesterday and available here, addresses SB 615, a 2012 bill that coal industry lobbyists hoped would shield them from citizen legal actions — especially over violations of West Virginia’s water quality standard for toxic selenium. Specifically, the case involves a lawsuit brought by lawyers from Appalachian Mountain Advocates on behalf of various environmental organizations over selenium pollution from the former Massey Energy (now Alpha Natural Resources) Brushy Fork coal-slurry impoundment in Raleigh County.

Essentially, Judge Chambers ruled that this legislation doesn’t do what coal industry lobbyists — and Alpha’s lawyers in this case — had hoped it would: Protect them from citizen suits like this one. And as readers also know, the success of citizen suits has been forcing coal companies to take greater steps to reduce pollution and — in the case of one company, Patriot Coal — to rework its business plans to phase out large-scale strip mining in Appalachia.

Some readers may recall that the legislation in question, proposed by Sen. Art Kirkendoll, D-Logan, and backed by the state Department of Environmental Protection, set as its goal, “clarifying that compliance with the effluent limits contained in a National Pollution Discharge Elimination System permit is deemed compliant with West Virginia’s Water Pollution Control Act.”  Basically, the idea was that if you stay below the specific permit limits for specific pollutants, then you’re good to go – nobody can come after you for water quality standard violations that may be occurring if those water quality standard violations aren’t tied to violations of those specific effluent limits.

Judge Chambers explains a variety of problems with this approach by the industry and its political supporters, but among them is the simple fact that, the declaration of legislative intent quoted above aside, the actual change to state statute here referred not to complying with effluent limits, but instead said that compliance with a permit … shall be deemed compliance with the Water Pollution Control Act.

In this particular case, the DEP-issued water pollution permit for the Brushy Fork impoundment does not contain a specific discharge limit for selenium. The state does have a water quality standard for selenium, though, and in their suit, the Ohio Valley Environmental Coalition, the West Virginia Highlands Conservancy, Coal River Mountain Watch and the Sierra Club allege that discharges from Brushy Fork are causing violations of that selenium standard downstream.

To follow this, keep in mind a couple important pieces of legal background: First, West Virginia’s regulations to enforce the federal strip-mining law specifically state that all water pollution discharges from coal-mining operations shall not violate effluent limitations or cause a violation of applicable water quality standards. Second, West Virginia’s NPDES regulations for coal-mining operations require that all permits include a specific provision that discharges from coal mining operations are to be of such quality so as not to cause violation of applicable water quality standards.

Like other NPDES permits for coal operations in West Virginia, the permit for the Brushy Fork impoundment specifies that the facility’s discharges aren’t allowed to cause a violation of the state’s water quality standards — for selenium or anything else.  So, Judge Chambers has ruled, even though DEP did not put a numeric limit on Brushy Fork’s selenium discharge, that permit language means that if the company is causing a water quality violation for selenium, citizens groups can sue to try to stop that pollution.

Details are out on proposed Patriot Coal-UMWA deal

Patroit Bankruptcy Protests

Last evening, Patriot Coal lawyer made this filing to the U.S. Bankruptcy Court out in St. Louis, asking for court approval of the company’s proposed deal with the United Mine Workers of America.

Michael Niven over at SNL Financial is reporting on some of the details of the proposed deal:

The proposed equity arrangement is in line with what Patriot originally proposed in April when it offered the union a 35% stake in the reorganized company. The UMWA later submitted a counter proposal calling for a 57% stake in a reorganized Patriot.

The trust would also be funded by other income sources, including additional payments from Patriot, the amounts of which would be determined by the company’s financial performance. Patriot would also fund the retirement trust through royalty payments on coal production. The agreed upon royalty rates are 20 cents/ton on targeted production levels established in Patriot’s five-year business plan and $1/ton on any production that exceeds targeted levels.

The complex settlement deal also includes a wide range of other terms including wage concessions from the union and obligations that Patriot facilitate union representation at some non-union mines.

Additional documents that are available about this today include three exhibits to that court filing: A proposed new Collective Bargaining Agreement between the UMWA and Patriot Coal operations, a Memorandum of Understanding between the company and the union, and a list of existing Collective Bargaining Agreements between various parties to the bankruptcy proceeding.

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Corps seeks comments on Blair Mountain mining

In this June 6, 2011 photo, this historical marker along W.Va. Route 17 in Blair, W.Va., is the only visible sign of the 1921 battle here between thousands of armed, unionizing coal miners and the thousands of law enforcement officers and security guards hired to defeat them. At least 16 men died on the mountain, which could be turned into a strip mine. (AP Photo/Vicki Smith)

There’s a new public notice out from the U.S. Army Corps of Engineers that looks pretty interesting:

The purpose of this Public Notice is to identify consulting parties who would be interested in assisting with the development of a Programmatic Agreement (PA) that would govern the implementation of the United States Army Corps of Engineers’ (Corps) responsibilities under Section 106 of the National Historic Preservation Act (NHPA) for undertakings that may affect the Blair Mountain Battlefield, a historic property.  The scope of the proposed PA would be limited to requests for Department of the Army (DA) authorizations submitted by the three applicants listed below for projects that would be subject to the Corps’ regulatory authorities under Section 10 of the Rivers and Harbors Act (RHA) of 1899 and Section 404 of the Clean Water Act (CWA).

The applicants are: WPP LLC, Aracoma Coal Co. (Alpha Natural Resources) and Mingo Logan Coal Company (Arch Coal).

The notice goes on to say:

The Blair Mountain Battlefield is an approximate 1700-acre district located in Logan County, West Virginia. The Keeper of the National Register of Historic Places has determined the Blair Mountain Battlefield is eligible for listing on the National Register of Historic Places. The applicants have requested the Corps negotiate a PA in accordance with 33 CFR 800.14 for activities that meet all three of the following criteria:

a) the activity is proposed by one or more of the applicants listed above;

b) the activity would require DA authorization; and

c) the activity may affect the Blair Mountain Battlefield.

This PA would describe the procedures that would be followed to implement Section 106 of the NHPA for any Corps undertaking that meets all three of the criteria listed above. The purpose of the PA would be to establish a program for consultation, review and compliance with Section 106 of the NHPA when agreed upon criteria are met and procedures are followed.

Comments are due by Aug. 11 to this address:

U.S. Army Corps of Engineers

ATTN: CELRH-RD-E, Blair Mountain PA

502 8th Street

Huntington, West Virginia 25701-2070

One of the most interesting things about yesterday’s mountaintop removal ruling — the latest industry win at the 4th U.S. Circuit Court of Appeals — was the reaction to it from Alpha Natural Resources. In an e-mail statement, Alpha spokesman Ted Pile had this to say about the decision:

… We were very confident in our position that the Corps of Engineers and our permitting department had worked tirelessly  to develop a permit that complies with the law and thoroughly  protects the environment, while allowing the mine to operate. We were pleased today to have our position affirmed by the 4th Circuit in a well-reasoned, unanimous opinion. 

It’s rewarding to us to see that the courts have multiple times cast aside the unfounded arguments of a small number of special interest groups who wish to stop coal at all costs. Who wins in this ruling are really the communities of Appalachia that are able to preserve high-paying mining jobs and enjoy the economic benefits that come from a properly run, well regulated business.

There are several things in there that are worth unpacking a little bit, as we try to understand what the 4th Circuit’s ruling about Alpha subsidiary Highland Mining’s Highland Reylas Surface Mine means, especially in the wake of two big losses for the coal industry in mountaintop removal cases in the D.C. Circuit and in the 6th Circuit.

First, there’s the way Alpha characterized the citizen groups — the Ohio Valley Environmental Coalition, the West Virginia Highlands Conservancy, the Sierra Club and Coal River Mountain Watch — as “a small number of special interest groups who wish to stop coal at all costs.”  That’s not really too far from the way Massey CEO Don Blankenship would try to minimize and marginalize citizens who are concerned about the impacts of large-scale surface mining on Appalachian forests, streams and communities (see for example here and here).

And here I thought that the Alpha Natural Resources buyout of Massey Energy two years ago was going to bring us a new day in the way coal companies deal with stakeholders … Remember what Alpha-backer Rep. Nick J. Rahall told us about the Alpha-Massey deal:

I think with new ownership now in Southern West Virginia, that we’ll see a reaching out by the companies to try to work with these residents ahead of time, hopefully, in the permitting process, or before the process even starts, to try to work out arrangements with them to ensure that they’re not placed in harm’s way.

If you read Alpha’s 2011 corporate “Sustainability Report,” there’s a great quote in there from CEO Kevin Crutchfield:

We need to be responsive to our communities and stakeholders. Listening is an act of respect.

And the report text itself says:

Our commitment to sustainability stems from our culture of Running Right, Leading Right and Living Right. This culture drives how we operate our business – which includes a commitment to always Running Right that ensures all of our employees make it home safely at the end of every day. It also drives how we approach the people whose lives we touch. Alpha has many stakeholders, and we know our decisions impact them in a variety of ways. To succeed, we need to operate with respect and attention to these stakeholders. We call this Leading Right. And finally, we seek to be the example we want to follow – in every act, every conversation, every moment, both within our company and as members of the communities where we live and work. For us, this is Living Right.

Does trying to minimize and marginalize four of the most active and engaged environmental and citizen groups in the region really constitute “being responsive” to communities and stakeholders?  Does it show much respect for people like Cindy Rank, the mining chair of the West Virginia Highlands Conservancy, who has been focused on trying to reduce mining’s impact on coal communities for far longer than there’s been an Alpha Natural Resources? Is that really “running right”?

More importantly, there’s this other part of the Alpha statement about the “unfounded arguments” about mountaintop removal’s impacts, raised by the citizen groups in this case.

Let’s get some things straight about this. First, the growing body of scientific research certainly doesn’t show that concerns about mountaintop removal’s impact on the environment are “unfounded.”  The science, for example, shows that mountaintop removal is having pervasive and irreversible impacts on the local environment. The science shows a growing concern about why people who live near mountaintop removal mining face greater risks of serious illnesses, including cancer and birth defects. And one of the most recent peer-reviewed papers outlines all of the broad impacts — beyond just water quality issues — from mountaintop removal.

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Yesterday’s release of a new report examining the ongoing decline in Central Appalachian coal production provided a perfect opportunity to advance the discussion of where the regional coal market is heading and what that means for the people of local coalfield communities. Certainly, that’s what the folks at Downstream Strategies were hoping that their report, “The Continuing Decline in Demand for Central Appalachian Coal: Market and Regulatory Influences,” would do.

Noting the group’s previous report on this topic three years ago, lead author Rory McIlmoil said in a press release:

In 2010, we recommended that state and local leaders take immediate steps to help diversify coalfield economies. To a large extent, that has not happened. However, it is vital that public officials begin making the political and financial investments necessary to build the foundation for new economic development opportunities in coal-producing counties.

And indeed, the report did get some media coverage, from The State Journal here in West Virginia and from WFPL over in Kentucky. Other media, including the Daily Mail here in Charleston and the Lexington Herald-Leader, seemed content to just run The Associated Press dispatch. Over at West Virginia MetroNews, I got a message that said “Search Result for ‘downstream strategies’ (0 articles)” when I looked for their coverage.

Still, even the coverage the report did get seemed to me to miss one of the most interesting points.  What I can’t figure out is why no one else seems to have picked up on this part of the Downstream Strategies report (see page xiii):

In recent years, employment has grown—despite the continuing decline in production. In 2011, direct mining employment totaled 37,800 jobs. Even as coal production declines in the future across the region, coal mining jobs are projected to increase due to a decline in labor productivity.

Coal mining jobs are projected to increase? Could this trend give state and regional leaders some breathing room to come up with economic diversification plans? Isn’t this good news? Isn’t it at least news? Apparently not, at least not to a news media focused on the same tired, worn-out old narrative.  Take the piece Dylan Lovan put out on The Associated Press wire.  I guess it starts out fine, with a lead that reports:

Hard times are expected to continue in the Appalachian region that was once the heart of the nation’s coal production, according to a new report.

But it doesn’t take long for the focus to shift to something that seems more controversial:

The region is home to a long-simmering battle between the industry and environmentalists over a mining practice known as mountaintop removal. Government agencies including the Environmental Protection Agency under the Obama administration have taken aim at the mining method, which uses blasting and heavy machinery to scrape away layers of rock and earth, drastically altering the landscape.

And Dylan Lovan pretty much gave Kentucky Coal Association President Bill Bissett (left) the chance to say whatever he wanted — that EPA permit delays cost Kentucky 3,600 jobs or that lots of consultants think a huge uptick in Central Appalachian coal is just around the corner — apparently without pressing him for any sort of evidence of those claims:

“This action, along with other regulatory effects from the federal government, have created an unfair atmosphere in eastern Kentucky’s coal production,” Bissett said.

The federal government’s halting of about 40 mining permits in eastern Kentucky has led to the loss of about 3,600 jobs in the mines and in businesses that benefit from the region’s mining, Bissett said.

“We do recognize eastern Kentucky is facing significant hardships right now in coal production, but much like that market has decreased so quickly, there are analysts telling us it could uptick almost equally as quickly,” he said.

 

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