Coal Tattoo

Prosecutors oppose Blankenship bail during appeal

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Mine Explosion Congress

Last night, prosecutors filed their brief with the 4th U.S. Circuit Court of Appeals to oppose former Massey Energy CEO Don Blankenship’s request to remain free on bail while appealing his conviction for conspiring to violate federal mine safety and health standards.

Here’s their summary of their argument:

A criminal defendant’s conviction and sentencing bring with them a strong presumption that he will serve his sentence without delay. By his motion to stay his sentence pending appeal, Defendant-Appellant Blankenship (“Defendant”) seeks to evade that presumption. He cites four supposed reversible errors and says his sentence should be delayed because of them. The record reveals, however, that the district court was exceptionally careful and thorough in resolving Defendant’s legal contentions both before trial and during it. Defendant’s appellate claims simply are weak, and success for him on appeal is improbable.

I’ve posted a copy of their brief here.

Also, here’s a copy of a 4th Circuit order that set the schedule for legal briefs in the appeal of Blankenship’s conviction.  Initial briefs are due May 31. Remember that, pending action by the 4th Circuit to stay his sentence, Blankenship is scheduled to report to prison on May 12.

So, is Don Blankenship ‘hardly a criminal’?

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Mine Explosion Congress

As the public tries to understand how six former Freedom Industries officials received a total of 60 days in jail for contaminating the drinking water for 300,000 people (see here and here for some of my efforts at explaining), some folks have naturally turned their attention to the upcoming sentencing in another of former U.S. Attorney Booth Goodwin’s major white-collar criminal cases

It’s hard not to wonder now whether former Massey Energy CEO Don Blankenship — to borrow a phrase that U.S. District Judge Thomas E. Johnston has now made famous — is “hardly a criminal.”

Like former Freedom officials Gary Southern, Dennis Farrell, William Tis, Charles Herzing, Michael Burdette and Robert Reynolds, Blankenship stands guilty of a crime that the law books list as a “misdemeanor.” A minor offense. A lesser crime (for more on whether crimes that put coal miner safety and health at risk deserve to be felonies, read this).

So when U.S. District Judge Irene Berger sentences Blankenship on April 6 — the day after the sixth anniversary of the Upper Big Branch Mine Disaster — will she let him off with what Blankenship’s critics (and certainly the families of the 29 miners who died at UBB) would consider a slap on the wrist?

Well, it’s true that Judge Berger’s hands are in some ways tied. Congress has made willfully violating a federal mine safety and health standard punishable by only up to one year in prison. And because Blankenship’s jury found him guilty only of conspiracy to willfully violate such standards, his conspiracy crime — normally a felony — is punishable with a maximum of one year in prison. Moreover, the Blankenship jury found him not guilty of the other, felony charges brought against him.

And while it’s true that Judge Berger has already sent four former Massey officials to prison for not insignificant periods of time, those four individuals (former Massey miner Thomas Harrah, UBB security chief Hughie Elbert Stover, UBB mine superintendent Gary May and former Massey unit president David Hughart) all were convicted by a jury or pleaded guilty to felony offenses.

Still, there some significant differences between the Blankenship and the Freedom cases, and they are worth understanding if you’re wondering how the next big sentencing in federal court here in Charleston might turn out. I’ve looked into this a little bit in the last day or so, and I asked Assistant U.S. Attorney Steve Ruby and defense lawyer Bill Taylor for their thoughts. I haven’t heard back from Mr. Taylor, but I’ll share some of AUSA Ruby’s comments below.

First, Blankenship was found guilty by the jury of conspiracy to willfully violate mandatory mine safety and health violations. This is quite different from the negligence and strict liability crimes involved in the water pollution cases against Freedom officials. As Ruby explained:

As you point out, Blankenship was convicted of conspiring to commit willful mine safety violations. The jury also found that his participation in the conspiracy was willful — a second level of willful misconduct, beyond the willfulness of the violations themselves. Willfulness is the highest standard of criminal intent that exists in the law. The difference between the willfulness of Blankenship’s actions, on the one hand, and the negligence and strict liability involved [in] the Freedom convictions, on the other, does distinguish the cases and would weigh in favor of a more severe sentence here.

Second, the federal government has already indicated in a court filing that it believes the advisory guideline sentencing range for Blankenship is 10 to 16 months (generally speaking, when a guidelines calculation produces a sentence which, like this one, ranges above the statutory maximum, that maximum becomes the guidelines range). Prosecutors indicated they believe there are factors that could push the guidelines range even higher, but they won’t yet explain their thinking on that. Ruby said:

We believe that the guidelines range ultimately could be some months higher than the 10- to 16-month range we discussed in our filing, but any difference would likely be a matter only of months, not years. We will decline at this time to discuss the specific enhancement that might increase the range. Given that the minimum range should be 10 to 16 months and the statutory maximum, unfortunately, is a year, we would not expect any difference to have much practical impact.

Continue reading…

Industry seeks to stall black lung protections

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The latest news on the black lung issue is this:

Coal companies are asking an appeals court to block implementation of the second phase of the U.S. Mine Safety and Health Administration plan for addressing coal miners’ exposure to respirable dust, the cause of black lung disease.

Parties such as Murray Energy Corp., the National Mining Association, Walter Energy Inc. and the Alabama Coal Association are seeking to block implementation of the remainder of the rule ahead of its Feb. 1 rollout date. The rule was unveiled in April 2014 and aims to lower occurrence of black lung, a disease that has been a contributing factor in the death of 76,000 coal miners since 1968.

As that report, from SNL Financial’s Taylor Kuykendall, continues:

The industry argues the rule was unlawfully promulgated without the participation of the National Institute for Occupation Safety and Health. Already, the filing states, the rule has imposed substantial burdens and costs in the form of re-engineering mines, purchasing expensive equipment, training and hiring personnel and new government certifications.

“These costs have hit a coal industry substantially weakened financially even compared to the already-weakened state it was in when the dust rule was promulgated in 2014,” the filing states.

You can read the industry court filing here, and there’s another media report on the issue out in the Herald-Leader:

The coal industry is seeking to forestall new standards aimed at cutting miners’ exposure to breathable dust that can cause deadly black lung disease.

Feb. 1 is the start date for the second phase of the rule. It would require miners to wear continuous personal monitors to check their exposure to dust, and companies would have to do more frequent sampling to check for compliance with dust limits.

Court won’t block Clean Power Plan

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Here’s the news from The Wall Street Journal:

A federal court denied a request by more than a dozen states on Wednesday to temporarily block the Obama administration’s carbon regulations while they mount a full legal challenge to the rules.

The decision is an early victory for the Environmental Protection Agency, which completed the rules last month calling for carbon emissions from power plants to be cut 32% by 2030 from 2005 levels. The regulations are the cornerstone of President Barack Obama’s climate plan, and Wednesday’s ruling is an early legal salvo in what is expected to be a yearslong court battle over Mr. Obama’s climate agenda.

West Virginia Attorney General Patrick Morrisey has been leading the legal fight against the EPA rule. You can read the court’s brief decision here.

Court action continues in Patriot bankruptcy

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patriotlogoPatriot Coal is back in U.S. Bankruptcy Court in Richmond, Virginia, today — this time on its motion to be released from its labor contracts with the United Mine Workers union.

As The Wall Street Journal reported, the judge yesterday indicated approval of a plan that could allow a Virginia environmental group to buy some of Patriot’s properties with the intent to reclaim them:

Judge Keith Phillips of the U.S. Bankruptcy Court in Richmond, Va., on Monday said he would sign off on the Sept. 9 auction. An affiliate of the Virginia Conservation Legacy Fund will lead off the bidding with its offer to take responsibility for $400 million in liabilities—workers’ compensation, black lung and environmental—tied to the assets.

The auction proposal had received objections from Patriot’s unsecured creditors’ committee and lender agent Barclays Bank PLC regarding the $5 million breakup fee Patriot sought to offer VCLF should it lose the bidding. However, those were resolved during the hearing with an agreement to require any winning bidder’s offer to provide enough cash to cover the fee.

The VCLF bid, which doesn’t include cash, does feature a pledge to issue new equity to Patriot’s creditors.

This month, VCLF attorney Andrew Troop told the bankruptcy court that through the deal, the nonprofit hopes to balance its quest to reclaim land through reforestation efforts while honoring the region’s tradition of coal production.

“Its desire here is to…reclaim land, operate responsibly, provide some return to creditors who otherwise it looks like would receive nothing or very little in connection with this plan, preserve jobs and enter into a new workable resolution with the United Mine Workers” of America union, he said at an Aug. 18 hearing.

 

 

Mine Explosion Congress

Late last Friday, the defense lawyers representing former Massey Energy CEO Don Blankenship filed a motion asking to keep the jury in Blankenship’s criminal trial from hearing any evidence about the April 5, 2010, mine explosion that killed 29 miners at Massey’s Upper Big Branch Mine in Raleigh County.

We published a story that evening online and in the next day’s print edition about the filing, and I’ve posted the court document here.

One of the things I noticed initially about this filing was the little dig Blankenship’s lawyers got in about media coverage of the case:

Not only will every juror know about the UBB explosion, many jurors will bring to this trial the misimpression that this case is about Mr. Blankenship’s responsibility for the UBB explosion. That mistaken belief would have been formed and reinforced repeatedly by the media and interactions in the community. From day one, the local press has covered these proceedings, erroneously, as intended to determine Mr. Blankenship’s responsibility for the UBB tragedy.

The first story cited as an example of this “erroneous” reporting was a piece I wrote for the anniversary of the disaster.  It was headlined, “Upper Big Branch 5-Year Anniversary: Blankenship’s trial is focus of families,” and it says very clearly:

While the allegations against Blankenship focus on events at Massey’s Upper Big Branch Mine, in Raleigh County, prosecutors stopped just short of alleging the former CEO was responsible for the deadly explosion.

The other thing I noticed was that, while Blankenship’s defense team doesn’t want the jury to hear evidence about what happened at Upper Big Branch, they go to great lengths to insist that, if the subject comes up, they can convince jurors that Blankenship’s theories that those 29 miners died in a “natural disaster”:

… Evidence from the government regarding causation and responsibility for the UBB explosion would be met by strong evidence from Mr. Blankenship rebutting the government’s theories, leading to confusion about the actual issues and to undue delay – a satellite mini-trial about the cause of the UBB explosion and who is responsible for it. If the cause of the explosion is at issue in the trial, the defense is ready to present substantial, compelling evidence that the incident was actually a natural disaster.

It does make you wonder why, if their case on the cause of the disaster is so good, Blankenship’s lawyers wouldn’t want to just go right down that road at trial.

Continue reading…

Blankenship gets OK for dirt-track trip

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It looks like U.S. Magistrate Judge Clarke VanDervort has approved former Massey Energy CEO Don Blankenship’s request to go to Ohio to watch his adult son’s dirt-track race. I’ve posted a copy of the order here.

Among other things, Judge VanDervort noted that U.S. Attorney Booth Goodwin — who has vigorously opposed Blankenship’s request for trips to Las Vegas — did not file an opposition to this particular travel request.

GOP leader pleased with UBB prosecutions

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Mine Explosion Congress

There was a fascinating little line in the opening statement given today by House Education and the Workforce subcommittee Chairman Tim Walberg, R-Michigan, at a hearing where lawmakers received an update on the administration’s mine safety efforts:

Upper Big Branch is a terrible reminder that bad actors will look for ways to cut corners and jeopardize the well-being of their workers, despite a moral and legal obligation to make safety the number one priority. I am pleased that those who had a hand in the Upper Big Branch tragedy are being held responsible. It is taking some time, but justice is being served.

These comments come, of course, as U.S. Attorney Booth Goodwin here in West Virginia prepares for trial on the criminal charges he and Assistant U.S. Attorney Steve Ruby have pursued against former Massey Energy CEO Don Blankenship.

And, the comments — coming from a Republican subcommittee chair in Congress — are particularly interesting, given how Blankenship’s defense team has tried to portray his prosecution as nothing more than an effort by Democrats to shut down a conservative critic.

MSHA cites gag order in denying UBB FOIA request

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Mine Explosion Congress

Regular readers know, of course, that The Charleston Gazette and a collection of other media outlets have been challenging a gag order issued by U.S. District Judge Irene Berger blocking public access to most of the court record in the criminal case of former Massey Energy CEO Don Blankenship.

Well, now we’ve got an interesting new twist on the impacts of Judge Berger’s secrecy.

Since March 2012, I’ve been waiting for the U.S. Mine Safety and Health Administration to get around to responding to a Freedom of Information Act request I filed following the release of MSHA’s “internal review” of its own actions at the Upper Big Branch Mine, where 29 miners died in April 2010.  Among the things I was most interested in were copies of the transcripts of the interviews done by the MSHA internal review team.

Well, I got my answer … MSHA says it is withholding those records, citing “an order issued by a United States District Judge prohibiting the release of any documents in the media or any other entity regarding the facts or substances of the criminal case involving Donald L. Blankenship.”

MSHA cites Federal FOIA Exemption 7(A), which it says “protects records of information compiled for law enforcement purposes when production of such law enforcement records or information could reasonably be expected to interfere with enforcement proceedings.”  The agency also cited Exemtion 7(B), which it said, “permits the withholding of records or information compiled for law enforcement purposes when disclosure would deprive a person of a right to a fair trial or an impartial adjudication.”

In a similar response to another FOIA — this one seeking information about the agency’s practices regarding enforcement on the prohibition of advance notice of inspections — MSHA again cited the gag order in the Blankenship case.

More water testing troubles … in Kentucky

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There’s an important story coming out of Kentucky this week that will be of interest to anyone who has followed the water sampling scandals here in West Virginia (see here and here) — or anybody who has just wondered why so much of our water pollution enforcement process is based on industry self-reported data. Here’s the press release from Appalachian Voices:

Over the course of 2013 and 2014, Frasure Creek Mining – one of the largest coal mining companies in Kentucky – sent the state false pollution reports containing almost 28,000 violations of federal law, and the Kentucky Energy and the Environment Cabinet failed to detect the falsifications, according to a letter of notification served to the company by four citizen groups. It was the second time the groups have taken legal action against Frasure Creek for similar violations.

In a 30-page notice of intent to sue mailed Friday, the groups document that Frasure Creek duplicated results from one water pollution monitoring report to the next, misleading government officials and the public about the amount of water pollution the company has been discharging from its eastern Kentucky coal mines. In some cases, Frasure Creek changed only the values that would have constituted violations of pollution limits in the company’s discharge permits. With a potential fine of $37,500 per violation, the maximum penalty could be more than $1 billion.

The Courier-Journal in Louisville explained:

This all comes, of course, as Sen. Mitch McConnell has accused the U.S. EPA of a war on coal, and promises his own war on the EPA, and as the EPA denies any war on coal — and, according to journalist Ronnie Ellis, some Kentucky citizens are arguing that it’s the coal companies that are waging the war … a war on the health and environment of Kentucky.

And, the C-J’s Jim Bruggers noted this response from Kentucky officials:

Contrary to inaccurate and inflammatory statements directed at the Cabinet … the agency has been actively monitoring compliance with Frasure Creek and other coal mining operations in Kentucky. Since 2011 the Division of Enforcement has reviewed approximately 179,000 (discharge monitoring reports) involving 78 coal companies and over 2,200 mining permits, assessed civil penalties in excess of $3,697,000, and has entered into 67 enforcement settlements with coal companies in Kentucky. The agency has and continues to proactively review and take appropriate enforcement actions to resolve violations identified during the inspection and review of coal mining operations.

We’ve covered previous discussion of the Kentucky situation here, and there’s a good summary of the background here, but this time, the story also made The New York Times:

In a state where coal-country creeks run red with iron, Frasure Creek Mining has been unusually clean of late: Amid tens of thousands of measurements that it submitted to Kentucky regulators in 2013 and early 2014, fewer than 400 exceeded the state’s limits for water pollution from coal-mine runoff … The disclosure could embarrass the state, not least because environmental activists caught Frasure and two other coal companies in the same scheme in 2010. Then, regulators promised to tighten their scrutiny of pollution reports and the laboratories that conduct pollution tests.

4th Circuit rejects Alpha conductivity appeal

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There’s an interesting order out from the 4th U.S. Circuit Court of Appeals concerning a significant mountaintop removal case.  In it, a three-judge panel refuses a request from Alpha Natural Resources that the court consider an immediate appeal of U.S. District Judge Robert C. Chambers’ ruling in part of a case over conductivity pollution from Alpha operations.

Some readers may recall the initial June ruling, which we reported this way:

Citing what he said was “extensive scientific evidence,” a federal judge has ruled for the first time that conductivity pollution from mountaintop removal mining operations is damaging streams in Southern West Virginia.

U.S. District Judge Robert C. Chambers concluded that mines operated by Alpha Natural Resources in Boone and Nicholas counties have “caused or materially contributed to a significant adverse impact” to nearby streams, giving citizen groups a major victory that also supports Obama administration efforts to reduce mountaintop removal impacts.

In a 67-page ruling issued Wednesday, Chambers found that mining discharges had not only altered the chemistry of the streams, but also “unquestionably biologically impaired” them, leaving both the diversity and abundance of aquatic life “profoundly reduced.”

“Losing diversity in aquatic life, as sensitive species are extirpated and only pollution-tolerant species survive, is akin to the canary in a coal mine,” the judge wrote.

“As key ingredients to West Virginia‘s once abundant clean water, the upper reaches of West Virginia‘s complex network of flowing streams provide critical attributes ― functions,‖in ecological science — that support the downstream water quality relied upon by West Virginians for drinking water, fishing and recreation, and important economic uses,” Chambers wrote. “Protecting these uses is the overriding purpose of West Virginia’s water quality standards and the goal of the state’s permit requirements.”

As we noted in that story:

Chambers ruled after a two-day trial in December. He found that the coal operations had caused water quality violations, but has not yet decided what sort of penalty or other injunctive relief he will order.

Alpha lawyers tried to appeal just what Judge Chambers had ruled on so far, but the 4th Circuit refused to hear that appeal. A trial is scheduled to start on Dec. 2 on what sort of penalty or injunctive relief is appropriate.

Mining ruling: Another legal win for Obama EPA

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Big news today out of the U.S. Court of Appeals for the District of Columbia: A three-judge panel has given the federal Environmental Protection Agency another victory in the agency’s efforts to combat water pollution from mountaintop removal coal mining.

You can read the decision here. Basically, the court held that EPA and the Army Corps of Engineers had legal authority to set up an Enhanced Coordination Procedures for reviewing Clean Water Act permits for mining operations, and that the EPA’s conductivity pollution guidance was not a final rule subject — at least not at this point — to legal challenge.

The decision throws out an earlier ruling by U.S. District Judge Reggie B. Walton, who had sided with the National Mining Association and the state of West Virginia, among others who had sued EPA to block the agency’s anti-pollution efforts.

Today’s decision was written by Judge Brett M. Kavanaugh, and the other members of the panel were Thomas B. Griffith and Sri Srinivasan.  Kavanaugh and Griffith were appointed by President George W. Bush, and Srinivasan by President Obama.

Readers may also recall that efforts to overturn the EPA’s veto of the Spruce Mine permit, while initially successful, were later tossed by the D.C. Circuit.

EPA press secretary Liz Purchia issued this prepared statement about the ruling:

EPA is pleased that the Court of Appeals agreed with our position in this case. We are committed to consistently using our authority under the Clean Water Act to protect the health and environment of Appalachian communities.  The Agency is working with the states, mining companies, other stakeholders and the public to enable environmentally responsible mining projects to move forward.

Citizen groups have also issued a statement, available here.

New coal fight: Bob Murray vs. Chris Cline

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Murray Energy President Bob Murray certainly is willing to use the legal system when he feels he’s been wronged.  So the latest report from The Associated Press is probably not that big of a surprise:

A leading U.S. coal company is suing a rival with which it shared confidential business plans during a deal that later fizzled, saying the competitor used the proprietary details to buy up land in southern Illinois to thwart the accuser’s expansion plans.

Murray Energy Corp., a privately held Ohio-based company with operations in Utah, alleges in a lawsuit Saline County, Illinois, that Williamson Energy LLC breached terms of a confidentiality agreement in 2008 when Murray was trying to sell it operations in the southern Illinois.

The story explains:

Under the agreement, the lawsuit claims, Williamson pledged not to disclose or use any of Murray’s confidential information to acquire mineral or property rights related to Murray’s operations for eight years.

Murray claims Williamson has done just the opposite since 2009, buying cherry-picked parcels and mineral rights at above-market prices — in some cases, four times the going rate — “directly in the path” of Murray’s mining operations. Murray alleges it planned to buy or lease those tracts, that the parcels are too small to offer mining potential to Williamson, and that Williamson bought the land “to hinder MEC’s operations to gain an unfair competitive advantage.”

Oddly, what AP reporter Jim Suhr doesn’t seem to have explained — at least in none of the versions of the AP story I’ve seen — is that the target of Murray’s lawsuit, Williamson Energy parent company Foresight Energy, is owned by another fairly colorful coal operator, West Virginia native Chris Cline (see here, here and here).

I’ve posted a copy of Murray Energy’s press release about lawsuit here and you can read the full complaint for yourself here.

Gina McCarthy

There’s another big decision out this morning from the U.S. Supreme Court on climate change, and you can expect to see some West Virginia officials touting it as more proof for their argument that the federal Environmental Protection Agency is out of control … but before you buy that, it’s worth actually paying attention to what the decision says and what some of the media coverage of it is explaining.

Sure, as some of the headlines are saying, the Supreme Court limited EPA’s authority in writing rules to restrict carbon pollution. But read on, for as this story from Bloomberg explains:

The U.S. Supreme Court partially upheld one of President Barack Obama’s early efforts against climate change, saying the Environmental Protection Agency had authority to impose new permitting requirements on some power plants and factories.

The permitting rules apply when facilities are built or expanded. They are separate from the administration’s more comprehensive climate-change regulations, including the plan released June 2 to cut carbon emissions from existing plants by as much as 25 percent over 15 years.

The Supreme Court gave the EPA a preliminary victory in October, refusing to consider arguments that would have barred the agency from addressing climate change at all. That left states and business groups fighting the permit rules, which they said may ultimately affect millions of facilities, including bakeries and apartment complexes.

Today’s ruling, which splintered the court, may head off that possibility, limiting the rules to a few hundred facilities that already have to get permits for other pollutants. The justices said greenhouse-gas emissions by themselves can’t serve as the trigger for a permit requirement.

Or, as The Washington Post pointed out:

Justice Antonin Scalia, writing for the court, said “EPA is getting almost everything it wanted in this case.” Scalia said the agency wanted to regulate 86 percent of all greenhouse gases emitted from plants nationwide. The agency will be able to regulate 83 percent of the emissions under the ruling, Scalia said.

Some readers may recall that West Virginia Gov. Earl Ray Tomblin and Attorney General Patrick Morrisey made quite a big deal about their filing of a “friend of the court” brief in the case.  But this ruling is hardly the kind of major defeat for EPA that those politicians are looking for. Here’s the New York Times:

The Supreme Court on Monday handed President Obama’s Environmental Protection Agency a victory in its efforts to regulate greenhouse gas emissions from stationary sources like power plants … States and industry groups challenged the regulations on many grounds, with the U.S. Chamber of Commerce calling them “the most burdensome, costly, far-reaching program ever adopted by a United States regulatory agency.” The Supreme Court limited the issue it would consider to whether the agency “permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouses gases.”

Mine Explosion Congress

Buried among the news from the long holiday weekend was this important report from the Gazette’s Dr. Paul Nyden:

After a five-week trial in Grundy, Virginia., a Buchanan County jury awarded $5 million in damages to Harman Mining Corp. and Hugh M. Caperton in their legal dispute with A.T. Massey Coal that began more than 16 years ago when Massey bought Wellmore Coal Corp in 1997.

The seven-member jury announced its verdict about 5:30 p.m. on Friday afternoon, awarding $4 million to Harman Mining and two related companies — Harman Development Corp. and Sovereign Coal Sales. The jury also awarded $1 million to Caperton for personal financial damages.

Caperton argued he was forced to shut down his mining operations and file for bankruptcy because Massey illegally broke a contract he had to supply metallurgical coal, through Wellmore Coal, to the LTV Corp., a Pittsburgh steel company.

Within six months of Massey’s purchase of Wellmore and its parent company United Coal, Massey President and CEO Don Blankenship shifted the LTV contracts to his own non-union mines in Boone County.

In the trial that ended on Friday, Harman and Caperton asked the Buchanan County jury for $90 million in compensatory damages, which included wages and benefits for union miners who lost their jobs when Harman Mining’s operations shut down in 1998.

Continue reading…

New Caperton-Massey trial underway in Virginia

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It hasn’t gotten the attention it deserves, but the Gazette’s Dr. Paul Nyden had this report in our Sunday paper:

Jurors in a Virginia court this week heard some of the same testimony as jurors in Boone County, West Virginia, a dozen years ago, as former mine company owner Hugh Caperton continues his efforts to win damages and other compensation from Massey Energy for allegedly forcing his company out of business.

Caperton alleges Massey bought Wellmore Coal Corp. in 1997 with the specific intention of shutting down Harman Mining’s operations, owned by Caperton, just outside Grundy and selling its own metallurgical coal to steel companies.

Caperton originally filed his suit in Boone County because the company Massey used to take over Harman’s coal contracts with LTV Corp. was based there. Massey bought Wellmore, a subsidiary of United Coal, on July 31, 1997.

Caperton won a $50 million verdict against Massey from a Boone County jury in 2002.

But the West Virginia Supreme Court overturned that verdict three times, ultimately saying the case should be sent back to Virginia, where Caperton operated his coal mines.

Harman Mining had its underground mines along a scenic road between U.S. 460 and the Breaks Interstate Park, on the Virginia-Kentucky border.

Buchanan County Judge Henry Vanover is conducting the latest trial before an 11-member jury.

Read the whole thing here.

EPA wins another key court battle

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There’s a big U.S. Supreme Court ruling out today that is a big win for the Obama administration’s Environmental Protection Agency. Here’s the short of it from The New York Times:

The Supreme Court on Tuesday upheld the Environmental Protection Agency’s authority to regulate coal-plant pollution that wafts across state lines from 27 Midwestern and Appalachian states to eastern states.

The 6-to-2 ruling is a major environmental victory for the Obama administration, which has instituted several new E.P.A. regulations under the Clean Air Act in an effort to crack down on coal pollution. Republicans and the coal industry have criticized the effort as a “war on coal.”

The regulations covering cross-state air pollution, also known as “good neighbor” rules, have pitted Rust Belt and Appalachian states like Ohio and Kentucky, which produce heavy pollution, against East Coast states including New York and Connecticut.

The Times’ Coral Davenport notes:

Legal experts say the Supreme Court decision, written by Justice Ruth Bader Ginsburg, may signal that the Obama administration’s other efforts to use the Clean Air Act to push through major environmental curbs on coal pollution will prove successful.

In June, the E.P.A. is expected to unveil a sweeping new climate change proposal, using the authority of the Clean Air Act to rein in carbon pollution from coal plants.

You can read the full ruling yourself here. And let’s not forget that West Virginia Attorney General Patrick Morrisey was among those who filed an amicus brief against EPA’s rule — and even bragged that this was this was “the first time in at least two decades that a Mountain State attorney general has led the writing of a brief in the U.S. Supreme Court involving the EPA.”

Supreme Court declines to hear Spruce Mine case

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The word is out this morning that the U.S. Supreme Court has declined to hear Arch Coal’s continued battle to overturn EPA’s veto of the largest mountaintop removal mining permit in West Virginia history. Here’s the list of cases released today by the court. Scroll down to page 3 of the .pdf file under the hearing CERTIORARI DENIED and you’ll see Mingo Logan Coal Co. v. EPA listed there.

There’s plenty of background in previous Coal Tattoo posts, including here, here and here. And let’s not forget that Arch Coal could have avoided all of this litigation by doing more to reduce the environmental impacts of its mining proposal.

In a statement today, Jim Hecker of Public Justice — one of the lawyers who worked in 1998 on the case that initially blocked the Spruce Mine — said this:

The coal industry has falsely painted the Spruce mine veto as an example of EPA overreach and a ‘war on coal,’ when in fact EPA’s authority to veto this permit is obvious from the face of the statute and EPA’s decision is based on clear scientific evidence of serious environmental harm from mining.

 

Alpha reaches deal on water pollution

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The Associated Press is out this afternoon with this news:

Alpha Natural Resources, one of the nation’s largest coal producers, will pay a $27.5 million fine and spend $200 million to reduce illegal toxic discharges into hundreds of waterways across five Appalachian states … The agreement includes the largest fine ever for violations of water pollution permits.

The government says that between 2006 and 2013, Alpha Natural Resources Inc. and dozens of subsidiaries violated water pollution limits in state-issued permits more than 6,000 times. They discharged heavy metals and other contaminants harmful to fish and other wildlife from nearly 800 outfall pipes directly into rivers, streams and tributaries, according to the government.

Monitoring records attached to the complaint show that in some cases, the releases exceeded permit limits by 35 times.

EPA has a press release here, and there’s more information from the government here, including a copy of court filings here. The agency described the deal this way:

Alpha Natural Resources, Inc. (Alpha), one of the nation’s largest coal companies, Alpha Appalachian Holdings (formerly Massey Energy), and 66 subsidiaries have agreed to spend an estimated $200 million to install and operate wastewater treatment systems and to implement comprehensive, system-wide upgrades to reduce discharges of pollution from coal mines in Kentucky, Pennsylvania, Tennessee, Virginia, and West Virginia, the Department of Justice and the U.S. Environmental Protection Agency (EPA) announced today. Overall, the settlement covers approximately 79 active mines and 25 processing plants in these five states.

Importantly:

In addition to paying the penalty, the companies must build and operate treatment systems to eliminate violations of selenium and salinity limits, and also implement comprehensive, system-wide improvements to ensure future compliance with the CWA. These improvements, which apply to all of Alpha’s operations in Appalachia, include developing and implementing an environmental management system and periodic internal and third-party environmental compliance audits.

 

EPA’s press release included these quotes from government officials:

“This settlement is the result of state and federal agencies working together to protect local communities from pollution by enforcing the law,” said Cynthia Giles, Assistant Administrator of EPA’s Office of Enforcement and Compliance Assurance. “By requiring reforms and a robust compliance program, we are helping to ensure coal mining in Appalachia follows environmental laws that protect public health.”

“The unprecedented size of the civil penalty in this settlement sends a strong deterrent message to others in this industry that such egregious violations of the nation’s Clean Water Act will not be tolerated,” said Robert G. Dreher, Acting Assistant Attorney General for the Justice Department’s Environment and Natural Resources Division. “Today’s agreement is good news for communities across Appalachia, who have too often been vulnerable to polluters who disregard the law. It holds Alpha accountable and will bring increased compliance and transparency among Alpha and its many subsidiaries.”

Alpha has its own press release out here, and it quotes Gene Kitts, an Alpha vice president (and previous Coal Tattoo guest blogger):

This consent decree provides a framework for our efforts to become fully compliant with our environmental permits, specifically under the Clean Water Act. Our combined total water quality compliance rate for 2013 was 99.8 percent. That’s a strong record of compliance, particularly considering it’s based on more than 665,000 chances to miss a daily or monthly average limit. But our goal is to do even better, and the consent decree provides an opportunity to proactively focus on improving on the less than 1 percent of the time that permit limits were exceeded.

It’s worth noting that the federal government entered into a massive, $20 million water pollution settlement with Massey Energy back in 2008 (before Alpha’s June 2011 buyout of Massey), and EPA officials were talking big at the time about how the deal was going to reform the company’s environmental practices. As we reported then:

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Court throws out Bush ‘buffer zone’ rewrite

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Here’s some news from federal court, via an Earthjustice press release issued yesterday evening:

Today a federal court struck down a controversial George W. Bush administration rule that opened up Appalachia’s streams and waterways to toxic dumping from destructive mountaintop removal mining operations.

Numerous national and Appalachian environmental and community groups challenged the midnight rule from 2008, which repealed a longstanding stream protection — a “buffer zone” of protection from mining activities and dumping around waterways. Earthjustice, on behalf of Coal River Mountain Watch, Kentuckians for the Commonwealth, Kentucky Waterways Alliance, Ohio Valley Environmental Coalition, Statewide Organizing For Community Empowerment, Sierra Club, Southern Appalachian Mountain Stewards, Waterkeeper Alliance, and West Virginia Highlands Conservancy, and together with co-counsel at Appalachian Mountain Advocates, the Appalachian Citizens Law Center, and Sierra Club, brought one of the legal challenges to the 2008 Bush rule, arguing that the rule unlawfully weakened protection for vital water resources.

Before the Bush rule eliminated the “stream buffer zone,” this safeguard stood for decades in order to protect American waterways from the type of extreme destruction and obliteration that is now being caused by mountaintop removal mining. Mountaintop removal mining has buried an estimated 2,400 miles of Appalachian streams and polluted many more miles of waterways.

You can read the ruling for yourself here, but keep in mind this part, which limits the on-the-ground impacts of this court decision:

OSM is in the process of developing a new stream protection rule and it would be unnecessarily costly and burdensome for OSM to administratively withdraw the 2008 Rule through notice-and-comment procedures when OSM is already working on a new rule to replace the 2008 Rule.