Coal Tattoo

What does Alpha have against scientists?

Well, first Alpha Natural Resources didn’t want any discussion about the growing body of science linking mountaintop removal to human illness discussed in the court case over the Reylas Surface Mine proposed by Alpha subsidiary Highland Mining Co.  In the process, Alpha’s lawyers convinced U.S. District Judge Robert C. Chambers to block testimony about the health studies — and as an added bonus for the company, the pressure of such legal fights appeared to convince WVU researcher Michael Hendryx — the lead scientist examining such issues — that he didn’t want to testify as an expert witness after all.

Now, Alpha’s lawyers want Judge Chambers to block any testimony in the case from Margaret Palmer, a nationally respected biologist from the University of Maryland who is one of the major players in the science examining the water quality impact of coal-mining in Appalachia.  Why? Because Dr. Palmer has dared to speak out publicly about her research and about the policy implications of her scientific findings. Here’s what the company’s lawyers allege in this legal brief filed on Friday:

Highland Mining requests that the Court preclude Plaintiffs from offering expert testimony by Dr. Margaret Palmer because she is a public advocate for Plaintiffs’ cause whose fundamental opposition to all surface mines in central Appalachia, regardless of the mine’s individual characteristics, renders her opinion both untrustworthy and unhelpful to the Court … Dr. Palmer has been an outspoken critic of surface coal mining in central Appalachia for several years and has claimed repeatedly that it is impossible for any surface coal mine in central Appalachia to comply with the Clean Water Act.

Regular Coal Tattoo readers know that Dr. Palmer was one of the major authors of among the most significant scientific papers to date about mountaintop removal, the January 2010 piece in the widely read journal Science, which concluded:

Despite much debate in the United States, surprisingly little attention has been given to the growing scientific evidence of the negative impacts of MTM/VF.

Our analysis of current peer-reviewed studies and of new water-quality data from WV streams revealed serious environmental impacts that mitigation practices cannot successfully address. Published studies also show a high potential for human health impacts.

What everyone may not realize is that Dr. Palmer has nearly 30 years experience studying water quality issues and has more than 150 research publications or collaborate projects on the issues to her name. (You can read her full C.V. online here).  Dr. Palmer is also director of the new National Socio-Environmental Synthesis Center, a National Science Foundation-funded center that aims to bring together scientists from various fields to use science to find answers to many of our world’s most pressing problems.

Keep in mind that, in mountaintop removal cases, Dr. Palmer’s role has been to testify about whether mine operators can really do what they claim to be able to do — rebuild Appalachian headwater streams, recreating the important ecological functions of the waterways buried or mined through by large-scale surface coal mining (see here, here, here, here, here and here for examples of her scientific papers on this issue — a full publication list is online here).

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Arch Coal seeks to reopen Spruce Mine case

In the wake of last month’s federal court ruling that the U.S. Environmental Protection Agency lacked legal authority to veto the permit for the Spruce No. 1 Mine, we’ve been waiting for the other shoe to drop … As folks who have followed this closely know that, along with a potential appeal by the Obama administration, the largest strip-mining permit in West Virginia history still faces another crucial legal challenge.

That’s right, the citizen group lawsuit over the Spruce Mine — this version of it, anyway — has never really been heard by U.S. District Judge Robert C. Chambers in Huntington.

Well last week, lawyers for Arch Coal moved things a step closer to possibly having that lawsuit be decided. With this court filing, Arch’s lawyers asked Judge Chambers to lift his stay on the proceedings (not the permit) and make a decision on the company’s longstanding motion for summary judgment. Recall that Judge Chambers had stayed proceedings in this case while EPA processed its veto of the permit, and since then, while another court heard a challenge to that veto.

And important thing to keep in mind here is that Arch and the citizen groups have a “standstill” agreement under which — the D.C. judge’s decision aside — the company can’t move forward with work under the permit without giving the citizen groups 20 days notice. Presumably, that 20 days is to give the citizens time to get into court and have Judge Chambers decide if the situation warrants a temporary order blocking the permit so the entire case could be heard.

As far as I know, Arch Coal has not yet given the citizens that 20-day notice … so stay tuned … But keep in mind that, even if Judge Chambers grants this request from Arch Coal, nothing seems to be happening very quickly. Arch asked the judge to give the government and citizen groups a month to respond to the company’s summary judgment motion on the merits of the permit.

NY Times to Obama: Appeal Spruce Mine ruling

The New York Times is urging the Obama administration to appeal last week’s ruling that overturned the U.S. Environmental Protection Agency veto of the Spruce Mine permit:

The Obama administration’s decision last year to revoke a permit for a huge mine in West Virginia inspired hope that mountaintop mining, which has caused immense environmental damage across Appalachia, would soon be coming to an end. Now a Federal District Court judge in the District of Columbia has ruled that the Environmental Protection Agency exceeded its legal authority in blocking the mine. The administration must appeal. The Clean Water Act is on its side, as are the people of West Virginia.

… Judge Amy Berman Jackson said the agency had resorted to “magical thinking” in claiming that the Clean Water Act gives it the power to retroactively rescind a permit. But Section 404 of the law gives the agency broad authority to protect water quality, including the “withdrawal” of permits “whenever” it determines that they will have an “unacceptable adverse effect” on the environment.

The E.P.A. rightly interpreted these words to mean that it had clear authority to claw back a badly misguided decision that would do even more damage to West Virginia’s streams and landscape. We trust that a higher court will read it that way as well.

Breaking: Judge overturns EPA veto of Spruce Mine

Here’s the latest, just reported by the AP’s Vicki Smith:

A federal judge says the U.S. Environmental Protection Agency exceeded its authority in revoking permits for what could now become West Virginia’s largest mountaintop removal mine.

In a ruling Friday, U.S. District Judge Amy Berman Jackson in Washington, D.C., ruled in favor of St. Louis-based Arch.

She declares a U.S. Army Corps of Engineers water pollution permit for the Spruce No. 1 mine in Logan County is “valid and in full force.”

Arch spokeswoman Kim Link says the company is pleased with the decision.

The EPA vetoed the corps’ permit for the mine in January 2011, saying it would cause irreparable damage to the environment.

The move enraged both the coal industry and West Virginia politicians, several of whom have since introduced bills to try rein in the EPA.

I’ve posted a copy of the ruling here, and you can read previous posted with background on the Spruce Mine controversy here, here, here and here.

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News coming in Crandall Canyon criminal probe

UPDATED: I’ve just posted a copy of the charging document, just filed in U.S. District Court in Utah.

Here’s the word from my friend Mike Gorrell at The Salt Lake Tribune:

U.S. Attorney for Utah David Barlow has scheduled a 2 p.m. news conference [THAT’S UTAH TIME] to talk about his office’s investigation of the 2007 Crandall Canyon mine disaster.

The U.S. Attorney’s Office has been conducting a criminal probe of the Emery County disaster, which claimed nine lives, for the past three years in response to requests from the federal Mine Safety and Health Administration and Rep. George Miller, D-Calif., then chairman of the House Education and Labor Committee.

Stay tuned …

SSP organizer Bobby Mitchell labeling a black water sample from Prenter. Photo from the Sludge Safety Project.

Important news in today from Boone County, where Circuit Judge William S. Thompson has handed residents of the Prenter area a significant legal victory.

Judge Thompson has ruled that residents can bring their legal case seeking medical monitoring related to coal-slurry pollution on a community-wide basis, rather than having to prove the elements of West Virginia’s medical monitoring requirements on a resident-by-resident, one-by-one basis. I’ve posted a copy of the judge’s ruling here, so you can read it for yourself.

These case involves more than 150 households and 361 individuals, but it’s not a class action (very few class actions are brought in West Virginia courts anymore, given that the Class Action Fairness Act sends them to federal courts). Judge Thompson noted evidence presented to him that showed handling the medical monitoring claims on a community-wide basis would cost about $90,000 to litigate, while handling them individually would cost nearly $1.9 million.

Is Stover sentence setback for UBB criminal probe?

BECKLEY, W.Va. — When U.S. Attorney Booth Goodwin stepped before the microphones outside the federal courthouse earlier this afternoon, the first question for him seemed pretty clear to me:  Was U.S. District Judge Irene Berger’s decision to reject Goodwin’s recommendation and not stick former Upper Big Branch Mine security director Hughie Elbert Stover behind bars for 25 years a setback in the criminal probe of the the nation’s worst coal-mining disaster in a generation?

The U.S. Attorney was pretty clear in his answer:

This is absolutely not a setback.

Believe it or not,  Booth Goodwin is probably right.

Really? How can it not be a setback? Stick with me here … read on.

Federal prosecutors pretty much let it all hang out on this one — They not only asked Judge Berger to “upwardly depart” from the federal sentencing guidance that recommended Stover get 31 to 44 months in prison, but they urged the judge to throw the book at Stover with the maximum sentence allowed by law.

Part of the hope here was that an especially stiff sentence for Stover would send a message to other folks out there who have information that would be helpful to prosecutors … Perhaps some memories would suddenly be refreshed, or folks who have so far refused to cooperate would think making a deal would be better than facing tough jail time if they got convicted.

And in taking that route, Goodwin and his top UBB prosecutor, Steve Ruby, outlined their theory that Stover was partly to blame for the disaster, arguing that he lead a scheme to use advance notifications of government inspections to cover up the real conditions at Upper Big Branch and avoid potentially costly safety improvements.

Prosecutors explained in this sentencing memorandum:

A 20-month MSHA investigation concluded that the systematic practice of providing advance warning of inspections at UBB was part of the cause of that mine’s April 2010 explosion.

Defendant played a singular and indispensable role in these warnings, as the United States proved at trial. He required UBB security guards to act as lookouts for mine inspectors, making a radio announcement the moment an inspector arrived. UBB was a sprawling mine, so these early warnings routinely gave mine officials up to two hours to conceal illegal conditions. Defendant’s wrongdoing helped stop MSHA inspectors from ever discovering how dangerous UBB truly was.

This is where they ran into problems. Judge Berger made it pretty clear that she just wasn’t buying the notion that Hughie Elbert Stover — who probably never went underground at Upper Big Branch in his time working for Massey’s Performance Coal Co. — was to blame for the deaths of 29 coal miners. At today’s hearing, the judge noted that Stover wasn’t actually charged with himself providing advance notice, or even conspiring with others to do so, but with obstrucing the government’s investigation. This led Judge Berger to say pointedly:

There was nothing in this case to indicate that your actions resulted in this particular explosion. There’s no evidence that any actions on your part at around the time of this explosion resulted in the loss of the lives of these miners.

The judge added:

It is a very serious thing to hang death on anyone, and it should only be done when there is evidence to support it.

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Former foreman sues Patriot in methane test scandal

The Associated Press is reporting on this, having picked up the story from the Morgantown Dominion Post:

An ex-mine foreman who admitted faking safety inspection reports is suing Patriot Coal Corp. and the Federal No. 2 mine bosses who he claims pressured him to falsify data. John Renner is awaiting sentencing on federal charges. He pleaded guilty in U.S. District Court in Clarksburg in March 2010, but prosecutors have repeatedly delayed his sentencing, citing his cooperation in an investigation of the mine.

The complaint says mine management pressured Renner to fake methane gas readings on sealed sections of the mine to avoid a shutdown that would have stopped coal production. The managers’ conduct was “atrocious, utterly intolerable in a civilized community and so extreme and outrageous as to exceed all possible bounds of decency,” the complaint charges.

We’ve reported on this before here, here and here, and noted that Federal No. 2 has long been held up by industry, labor and government officials as a model mine. Renner has never been sentenced in his criminal case, and the public has never really been told what’s going on with this investigation.

Judge Chambers blocks health studies from case

In a much-followed motion on a major permit challenge, U.S. District Judge Robert C. Chambers has refused to allow citizen groups to argue that the federal Army Corps of Engineers wrongly failed to consider the growing scientific evidence that links living near mountaintop removal mining operations to increases risks of serious health problems, such as birth defects and cancer.

Judge Chambers issued his ruling on Monday, and I’ve posted a copy of his six-page opinion and order here. Readers may recall that Alpha Natural Resources was fighting an effort by the Ohio Valley Environmental Coalition and other groups to present testimony about the long list of West Virginia University studies that have raised serious questions about mountaintop removal’s public health impacts. OVEC and the other groups are challenging a Clean Water Act permit the Corps issued for Alpha’s proposed Reylas Surface Mine in Logan County.

The judge cited the provisions of one of the Federal Rules of Civil Procedure, and a U.S. Supreme Court case that says that lawsuits like this one should generally be allowed to be amended or supplemented unless the proposed amendment would be “futile.” He also cited case law that describes how the National Environmental Policy Act purports to apply to these situations (see here, and here, for example).

Judge Chambers made two central points in this short decision.

First, he ruled that the Corps had already issued the permit, so that any federal action requiring NEPA review was over and done with — despite the fact that the actual, on-the-ground mining work that the plaintiffs are concerned about hasn’t started yet. Commenting on what citizen groups were trying to do, the judge wrote:

… The Corps’ duty to supplement [its analysis of the proposed permit] would continue so long as environmental impact remains to be realized from the permit decision. This position simply cannot be correct in a world where the impacts of permitting decisions are potentially permanent … Once the proposed action [which the judge defines as permit issuance — not mining activity] is completed, an agency’s duty to supplement terminates.

Second, the judge concluded that even if he allowed the citizen group lawyers to get the health studies into the case, they would still not be able to prove that the Corps’ failure to consider them in the permit review was arbitrary and capricious, the legal standard for overturning a Clean Water Act permit issuance. According to Judge Chambers:

Where, as here, the new claim is based on studies first published after the agency has met its initial NEPA obligation, the inquiry ‘must be framed in terms of information available during a specific time period, with recognition of the fact that an agency cannot have acted arbitrarily unless it has had a reasonable time to consider the alleged new information.

More specifically, Judge Chambers argued:

Having been presented with the newly published Hendryx studies for the first time in this lawsuit, the Corps has not had a reasonable opportunity [to] consider them, let alone to take action that could be found to be arbitrary and capricious.

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Breaking: Patriot agrees to huge selenium cleanup

Photo by Vivian Stockman, Ohio Valley Environmental Coalition

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

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

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

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

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

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

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

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

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

Dianne Bady with the Ohio Valley Environmental Coalition said:

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

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

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

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

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

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

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

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

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

Is it really all that surprising that, as we reported in the Gazette this morning, Alpha Natural Resources is trying hard to keep any discussion of West Virginia University’s studies linking mountaintop removal to human health problems out of a pending lawsuit over one of the company’s Clean Water Act permits?

I mean, come on … nobody else — except the people who live near mountaintop removal operations — wants these studies to be part of a public conversation about the future of the Appalachian coal industry.  Sen. Jay Rockefeller won’t hold a Science Committee hearing on the subject. Sen. Joe Manchin doesn’t have time to talk common sense about what these studies show. Gov. Earl Ray Tomblin doesn’t want anything to do with the topic.   Rep. Nick Rahall, while he did agree to an interview on the subject, can’t figure out what agency of the government should examine the issue.

And the only time you see much in most of the state’s media outlets on this topic, it’s to allow coal industry officials to spread half-truths and misinformation about the findings of WVU’s Michael Hendryx and his colleagues.

So maybe it’s not that big a deal that Alpha doesn’t want these health studies considered in the context of a challenge to its Highland Reylas permit … the really interesting thing now will be to see if U.S. District Judge Robert C. Chambers — who has presided over a bunch of significant mountaintop removal cases, and shown a willingness to listen to the science from both sides in those matters — will allow these issues to be heard in his courtroom.

UPDATED: Here’s a link to a news story in which we report that all 29 settlements have been reached.

By the end of the day, settlements are expected to have been finalized between Alpha Natural Resources and the families of all of the miners who died in the Upper Big Branch Mine Disaster.

At least that’s the word from my sources involved in the mediation over the weekend at Glade Springs Resort. Lawyers for Alpha and the families were meeting in talks mediated by Michael K. Rozen, who is parters with Kenneth Feinberg, who has handled such high-profile cases as the Sept. 11 Victim Compensation Fund and the BP Oil Spill Fund.

Alpha, which bought the mine disaster liability when it acquired Massey Energy last June, had previously reached settlements with the families of 11 of the miners who died. Several other settlements have since been reached, and all indications are that all of the potential wrongful death claims — meaning those for all 29 victims who died — could be agreed upon by the end of the day.

Presumably, Alpha will be eager to go public when that happens, as settling those claims and putting a definitive number on the liability is certain to be considered a positive thing on Wall Street.


Alpha agrees to $50 million for selenium treatment

This just in from the Sierra Club:

Today, a coalition of conservation and environmental groups completed a legal settlement with Alpha Natural Resources over high levels of selenium output at several of the company’s West Virginia coal mines. The settlement requires that the coal mining company – formerly Massey Energy — begin construction of selenium treatment facilities with an estimated construction cost of over $50 million, and to pay penalties of $4.5 million. The suit was brought by the West Virginia Chapter of the Sierra Club, West Virginia Highlands Conservancy, Ohio Valley Environmental Coalition, and Coal River Mountain Watch.

“This settlement will require Alpha to pay their due and start addressing the damage done to West Virginia waterways,” said Jim Sconyers, Chair of the West Virginia Chapter of the Sierra Club. “This settlement reflects another step in our fight to ensure that coal companies act responsibly in regards to the health of surrounding communities and West Virginia’s wild lands.”

The settlement requires Alpha to immediately begin installing treatment technology to bring selenium discharges within acceptable levels. The proposed date of final compliance for the settlement is July 1, 2014 for all mines affected to ensure Alpha has time to install treatment facilities and make any necessary adjustments. Alpha will be subject to significant penalties for any violations that occur after the compliance date for each source of pollution. The vast majority of the penalties will go to the West Virginia Land Trust.

“This settlement, which follows recent agreements with Arch Coal and Patriot Coal, proves that coal mines in West Virginia have the ability to treat their selenium problems,” said Dianne Bady with the Ohio Valley Environmental Coalition. “Now it’s time for all coal companies to take similar actions.”

“Although treatment may be sufficient to address these existing selenium problems, ultimately the industry and regulators need to recognize that it’s not appropriate to mine coal seams that are high in selenium,” said Cindy Rank with the West Virginia Highlands Conservancy.

Selenium, a toxic element that causes reproductive failure and deformities in fish and other forms of aquatic life, is discharged from many surface coal-mining operations across Appalachia. At very high levels, selenium can pose a risk to human health, causing hair and fingernail loss, kidney and liver damage, and damage to the nervous and circulatory systems.

“The West Virginia DEP should be ashamed that citizen groups are doing what the agency should have done years ago,” said Vernon Haltom, executive director of Coal River Mountain Watch. “Instead, it’s left to citizen groups to take action to protect West Virginia’s streams and communities.”

The settlement was lodged with the U.S. District Court for the Southern District of West Virginia. The U.S. government will have an opportunity to review the settlement before its terms take effect.

CONSOL agrees to stream cleanup

There’s an interesting settlement that’s just been filed in U.S. District Court here in Charleston in a case brought by the Sierra Club and other groups against CONSOL Energy’s Fola Coal Co. subsidiary.

Environmentalists sued CONSOL back in October 2010, alleging the company was violating water quality standards at Fola’s Surface Mine No. 3 in Clay and Nicholas counties. The suit alleged the mine was “discharging pollutants … which cause acute and chronic toxicity, ionic stress, and biological impairment” in Boardtree Branch. It cited the narrative water quality standard for biological integrity and aquatic life and problems with conductivity pollution.

Under the settlement, CONSOL is going to conduct a major stream restoration project that company officials believe will resolve Boardtree Branch’s water quality problems. But if that project doesn’t work, the company is going to be on the hook for building an expensive new treatment system that will fix the problem.

Joe Lovett of the Appalachian Mountain Advocates represented environmental groups in the case, and he told me that the proposed settlement — which needs court approval — should be thought about in the context of the U.S. Environmental Protection Agency’s water quality guidance on conductivity and the West Virginia Environmental Quality Board’s ruling to require conductivity limits in a strip-mining permit. Lovett said:

It’s significant because for the first time a coal operator has agreed to comply with the narrative water quality standard related to a valley fill. It’s scientifically indisputable that valley fills cause high conductivity and impair life in streams. This coal company has agreed to remedy that.

I’ve posted a copy of the settlement here.

I’ve just learned of ruling by the West Virginia Environmental Quality board, lifting a stay on water pollution permit changes for Arch Coal Inc.’s New Hill West Mine in Monongalia County.

Readers may recall that this case focuses attention on the U.S. Environmental Protection Agency’s guidance for dealing with conductivity pollution from strip-mining operations. The board had ruled with the Sierra Club, which appealed the WVDEP permit approval, and last month a circuit judge sent the matter back to the EQB.

I’ve posted a copy of the EQB’s new ruling here, but I’ll try to briefly summarize.

Basically, the board said that new information about financial losses for Arch Coal was significant enough and evidence about immediate environmental harm small enough that it wasn’t going to continue a stay of the mining activity. But the company still doesn’t have a valid water discharge permit — DEP still needs to make some board-ordered changes to that permit, and board members remain concerned about long-term impacts and believe the Sierra Club is likely to prevail on the merits.

The ruling explained:

Simply put, the receiving stream is so degraded at present that a temporary stay will not repair the harm, but will likely cause ham to the local economy and financial harm to Patriot Mining …

… Macroinvertebrates are scarce and could suffer greater harm if levels of pollution are increased as a result of new mining … However, the testimony of experts at the evidentiary hearing also suggested that the impact would not be immediate or great. Long-term impacts may be considerably larger but immediate harm was not proven to the board.

… Given that the board has made a finding that [the Sierra Club] is likely to prevail on the merits of the case and that WVDEP and Patriot must modify the NPDES permit and may need to seek approval by the Environmental Protection Agency, all of this may be too great a risk for the company to move ahead with production at this time. However, the board will not stay the remaining terms and conditions of the permit prior to issuing a supplemental order in this matter.

Last of Sago lawsuits settled

If you happened to miss it late Friday night or in Saturday’s paper, we reported that the last of the wrongful death lawsuits related to the 2006 Sago Mine Disaster have been settled:

Lawyers for families of six of the miners filed papers indicating they had reached settlements with mine operator Wolf Run Mining Co., and resolved claims against parent company International Coal Group and other defendants.

Terms were not disclosed, but Kanawha Circuit Judge Charles King scheduled a hearing for Nov. 16 to consider approval of the settlements, court officials said. Trial had been scheduled to start in May.

“Right now, the families are focused on completing the steps necessary for the conclusion of the settlements,” said Morgantown lawyer Al Karlin, who represented several of the families.

Families of five of the miners killed at Sago had already settled wrongful-death cases against the company, and survivor Randal McCloy Jr. settled a lawsuit filed over injuries he sustained in the disaster.

Technically, the wrongful-death cases involve settlements between the mining company and the estates of the miners who died. The new settlements also resolve two other lawsuits filed against the mining company by family members other than those administering the estates.

In a March 15, 2011 photo, Massey Energy Security Chief Hughie Elbert Stover, center, and his wife, left, are swamped by members of the media as they leave the Federal courthouse in Beckley after. (AP Photo/The Register-Herald, F. Brian Ferguson)

Updated:  Check out a story on today’s testimony, here.

A 12-person jury was selected Friday and lawyers are set to begin their opening arguments at 9:30 this morning in the trial of Hughie Elbert Stover, security director at Massey Energy’s Upper Big Branch Mine, where 29 workers died in that terrible explosion back on April 5, 2010.

The explosion was the worst U.S. coal-mining disaster in nearly 40 years, and Stover’s indictment clearly grew out of what government officials say is a sprawling criminal investigation. But his charges don’t directly have anything to do with the explosion or the deaths. Instead, Stover is charged with two felonies: Lying to government investigators and trying to destroy evidence. Together, the two charges carry a maximum penalty of 25 years in jail, with the heavy time — up to 20 years — tied to the second charge, which is technically called “destruction, alteration, falsification of records in federal investigations and bankruptcy.”

Stove had faced three felony counts, but federal prosecutors dropped one of those late last week. Mostly, that move makes for an easier case for prosecutors. They dropped one count that alleged Stover lied to an FBI agent and an MSHA investigator in an interview that wasn’t recorded or transcribed. But they kept another count alleging that he lied in his initial interview with MSHA and state investigators in an interviewed that was transcribed by a court reporter. The difference? Well, now prosecutors don’t have to put agents on the stand to testify about what Stover said in that unrecorded interview, meaning the defense won’t get a chance to try to discredit the agents’ version of those events. Instead, they can just introduce the transcript to show what he said.

Still, prosecutors will still have to convince jurors that Stover lied when he told investigators that Massey had a policy that prohibited security guards from giving advance warning of federal safety and health inspections. Court records indicate that prosecutors have several witnesses who are expected to testify on that point. Prosecutors will also have to prove that Stover told one of his employees to dispose of a bunch of security-related documents kept in a garage on the mine property.

Both charges stem from the government’s investigation of concerns that Massey officials used security guards to warn underground foremen and other workers of impending inspections, perhaps giving time for any violations to be quickly remedied. Regular readers will recall that this was a major allegation made against Massey by families of the Upper Big Branch miners during a congressional field hearing held by Rep. George Miller, who was then chairman of the House Committee on Education and Labor.

Continue reading…

Judge allows mention of mine disaster in trial

Larry Messina over at The Associated Press has a story out this morning reporting that:

A federal jury can hear about West Virginia’s Upper Big Branch coal mine disaster in an upcoming criminal trial arising from last year’s deadly explosion.

Defense lawyers for Hughie Elbert Stover had argued that mention of the blast that killed 29 miners would unfairly prejudice jurors. They also questioned its relevance.

Trial in Stover’s case is scheduled to start on Monday, and U.S. District Judge Irene Berger also ruled in this 11-page order against Stover’s efforts to have thrown out his own statements to mine disaster investigators and to federal agents.

Stover is charged with lying to investigators and with trying to destroy evidence related to questions about whether Massey routinely warned underground workers about federal inspectors showing up at the Raleigh County mine prior to the April 5, 2010, explosion that killed 29 workers.

Yesterday, lawyers for several citizen groups filed papers to renew their effort to block a U.S. Army Corps of Engineers permit for the the Reylas Surface Mine, proposed by Alpha Natural Resources and its subsidiary, Highland Mining Co.

We just recounted the history of this permit, and an earlier legal challenge by the Ohio Valley Environmental Coalition, the West Virginia Highlands Conservancy and the Sierra Club, in this previous Coal Tattoo post.

This new legal filing, from Joe Lovett and Derek Teaney of Appalachian Mountain Advocates and Jim Hecker of Public Justice, does a couple of interesting things.

First, it puts Alpha Natural Resources — despite all of CEO Kevin Crutchfield’s talk about “Running Right” (see here, here, here and here)  — smack in the middle of a major legal case over mountaintop removal permitting.

Second, if you read the new legal papers filed by the citizen group lawyers, you’ll see that in this case, they’re putting the growing science indicating public health concerns related to mountaintop removal front and center.

Now, the renewed legal challenge recounts variety of concerns previously raised about this permit:  Conductivity pollution, inadequate mitigation, cumulative impacts, public notice and selenium discharges.

But this time, the lawyers attached three of the landmark WVU studies by Dr. Michael Hendryx (see here, here and here) concerning general health impacts, birth defects and cancer — all things that Dr. Hendryx found in higher rates among residents living in mountaintop removal mines.

The citizen groups allege that the Corps of Engineers clearly was aware of this research, but did not consider it when issuing the Reylas permit. They asked U.S. District Judge Robert C. Chambers to order the Corps to perform a new analysis, in which agency officials examine these health studies and what they mean for this particular permit. Their legal papers explained:

The three studies described above present a seriously different picture of the impacts of mountaintop mining on human health than what the Corps found. The Corps found no human health impacts at all, while these studies found an increase in unhealthy days and birth defects and a potential doubling of cancer risk.

No word on a hearing yet before Judge Chambers … so stay tuned …

Judge sends Patriot permit back to EQB

Legal wrangling over Patriot Mining’s proposed New Hill West mountaintop removal mine in Monongalia County is set to resume this week, following a ruling by Kanawha Circuit Judge James Stucky on a company appeal.

Readers may recall that the state Environmental Quality Board in March ruled against the West Virginia Department of Environmental Protection, saying that WVDEP wrongly failed to include discharge limits for conductivity — and also for sulfates and total dissolved solids, or TDS — when it approved the permit. (See here, here and here for previous coverage).

Well, Patriot Mining (then part of International Coal Group, which has since been bought by Arch Coal) and WVDEP both appealed to Kanawha Circuit Court, and we now have this ruling from Judge Stucky. The judge did not overturn the EQB decision, but he didn’t really uphold it, either. Instead, the judge basically said the EQB didn’t make clear the reasons for its decision. He sent the case back to the board, with instructions that they:

… Provide written supplemental findings detailing a reasoned and articulate decision …

And now, the company has filed a motion asking the board to clarify its previous decision to block the permit pending the outcome of the case. Company lawyers explained:

The Court’s order did not expressly address the stay that has now been in place for over ten months, but because the original stay was intended to last only until the Board ruled on the merits, and because the Court effectively vacated the Board’s order, Patriot believes the Board’s stay is no longer in effect, and by this pleading notifies the Board and parties that it may commence operations in the near future. Should the Board disagree and believe the stay is still in effect, then Patriot hereby moves to dissolve the stay.

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