Coal Tattoo


Really, isn’t anyone — outside of the people who wrote it — fooling themselves if they think they already understand all of the implications of the new “Stream Protection Rule” proposal made public this week by the federal Office of Surface Mining Reclamation and Enforcement?

Gosh, I mean, the rule itself is 1,238 pages long and the accompanying Environmental Impact Statement is 1,267 pages long.  As I wrote in today’s Gazette story, though, really solid, definitive reactions from industry officials and their political allies were flying out literally as Interior Department officials were making these documents public.

For example, here’s West Virginia’s senior U.S. Senator, Democrat Joe Manchin:

This Administration’s long list of overreaching regulations is absolutely crippling West Virginia families and businesses. This proposed rule would have a devastating impact on our families, jobs and economy, and it fails to strike an appropriate balance between the economy and the environment.

The media isn’t much better. Here’s Hoppy Kercheval over at MetroNews:

Meanwhile, the Interior Department is trying to downplay the economic impact on coal states like West Virginia.

Several years ago a draft of the report leaked, saying the updated stream buffer rule would result in the loss of 7,000 jobs. The outcry was intense, but the Interior Department patched that up by just using a different formula to come up with new numbers… and voila!

Now the agency claims, with no hint of irony, that the rules will preserve “economic opportunities.” Specifically, according to their consultant’s revised calculations, 460 jobs will be lost, but 250 jobs will be created in mine reclamation work.

If we get many more of these Washington “opportunities” we’ll have to turn out the lights.

Here’s the thing, though, if Hoppy had actually read the rule or the EIS, he wouldn’t have used that 460-jobs figure — because it’s not in the report. It was mistakenly given to media during a conference call. I don’t know if Hoppy was on that call or saw the number in another media account, but he sure didn’t look at the actual economic impact numbers in the EIS, or he would have noticed the problem.

To be fair to Hoppy, I doubt any of the reporters who had to cover this story on deadline yesterday finished every single page of both documents. I certainly didn’t. But any reasonable reading of my story will not see the broad, sweeping conclusions he’s already drawing. I specifically noted:

The exact contents of the rule — such as how well it protects streams inside mining permit area “footprints” or toughens the definition of “material damage” to streams that isn’t allowed under the law — were still being digested by all sides Thursday.

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It may only be a matter of time before Alpha Natural Resources seeks bankruptcy court protection. As the Wall Street Journal reported earlier this week:

Alpha Natural Resources Inc. is in talks to obtain financing for a potential bankruptcy filing early next month as it grapples with a severe downturn in coal prices, according to people familiar with the matter.

The Bristol, Va., coal miner is negotiating the terms of a “debtor in possession” loan with its loan holders and senior bondholders, the people said. The new financing would help see Alpha through bankruptcy should it file for chapter 11 protection in early August, around the time some of its convertible bonds come due, the people said.

The loan could total around $300 million to $400 million, one of the people said. Jointly providing the loan could align the interests of the two creditor classes, potentially smoothing Alpha Natural’s efforts to restructure its debt.

This morning, the Gazette’s Dr. Paul Nyden noted:

The New York Stock Exchange on Thursday stopped the trading of Alpha Natural Resources common stocks because of the company’s dramatically low stock prices.

On Aug. 1, 2008, Alpha’s stock reached the value of $104 per share. At the close of business on Wednesday, the value of Alpha’s stock had dropped to 24 cents a share.

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Over the weekend, The New York Times published an interesting West Virginia Day offering:  A lengthy story about former Massey Energy CEO Don Blankenship. The story dug deep into the archives of various Blankenship controversies, and understandably made much about the big trial that’s coming up in October.

The story was what folks in the business call “a good read,” and obviously a lot of folks with a keen interest in all things Blankenship and in the pending criminal case (myself included) were posting the link and commenting on it through various social media outlets.

But gosh, the story got the number of counts and the potential sentence that Blankenship faces wrong, with the Times apparently being unaware of the superseding indictment that consolidated the charges into three felony counts and trimmed one year off what what was originally a 31-year maximum sentence.

Frankly, I was a little surprised that the Times did this particular piece, given that many of the same themes — especially how unusual it is in these parts for a coal CEO to be held accountable through a criminal trial — were covered in a previous piece the Times did shortly after the original indictment back in November 2014.

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Appalachian Power: Plants not worth upgrading

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Gazette photo by Lawrence Pierce of the Kanawha River Plant in Glasgow, W.Va.

There’s been a fair amount of hand-wringing about the planned closure by American Electric Power’s Appalachian Power subsidiary of the Kanawha River, Philip Sporn and Kammer power plants (see especially Daily Mail stories here and here).  Several years after the company’s decisions were announced, all this consternation led staff over at the state Public Service Commission to ask the PSC to investigate the closures.

Lawyers for Appalachian Power responded initially by pointing out that they have actually already provided the commission with a great deal of information on the matter as part of several previous cases.  That wasn’t good enough for the PSC, and commissioners ordered the power company to provide more details.  Appalachian lawyers did that yesterday, providing this 90-page filing.

Among the more interesting parts of Appalachian’s response:

— Almost all of the operating employees of the Disposition Units have been reassigned or have retired or taken severance.

— Compliance with the MATS Rules would require significant construction work. It might be possible for Disposition Units to meet the requirements of the MATS Rule by constructing Selective Catalytic Reduction (“SCR”) and Flue Gas Desulfurization (“FGD) systems … The installation of SCR and FGD systems would require installation of material handling systems, wastewater treatment systems, Absorber vessels, new ductwork, new stack exhausts, and numerous other systems. APCo has not undertaken any design work for SCR or FGD systems for the Disposition Units because the costs were deemed to be prohibitive, in light of the age and condition of the units.

— Because of the time for the construction of such systems, any Disposition Units at which it was decided to construct these systems could not be returned to service for a minimum of approximately five ( 5 ) years from the date such construction projects were begun.

— The Company has not performed any detailed cost estimates because the order of magnitude of the costs was so tremendous that APCo deemed it imprudent, given the age and condition of the Disposition Units, to have its customers bear such costs, particularly over the comparatively short anticipated lives of any of  the conversion or retrofit projects discussed above.

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Friday roundup, May 29, 2015

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AP10ThingsToSee The Last Breaker

Coal mining crews work near the St. Nicholas Coal Breaker in Mahanoy City, Pa. on Wednesday, April 29, 2015. The old breaker is about 100 miles northwest of Philadelphia in a region that holds nearly all of the nation’s anthracite, a pure grade of coal that spawned the railroads, powered America’s Industrial Revolution and dominated home heating in the East. (AP Photo/Matt Slocum)

This Associated Press story about the last coal breaker coming down in Pennsylvania got me thinking about the long tradition — both proud and not so proud — of the region’s coal industry, especially as the forecasts continue to show coal’s inevitable decline.  And what do you know, Politico has a piece called, “How coal disrupted the world,” by Barbara Freese, author of the great book, “Coal: A Human History“:

Matthew Boulton was the Steve Jobs of 18th– century England — a visionary entrepreneur with a love of technology and flair for drama.  When asked by King George III what he was working on, Boulton announced he was producing “a commodity which is the desire of kings.”  Namely, “power, your majesty.”

It was a grandiose promise, but he delivered. Boulton’s business partner was James Watt, whose new steam engine would soon drive the Industrial Revolution. It was a breakthrough that gave humanity a way to efficiently convert the concentrated energy of coal into useful mechanical power. And even before its impact was felt, Boulton had perceived that this new engine would be more than a technology – that there is a link between coal and kings, between the physical power a society taps into and the political power it ultimately supports.

The Last Breaker

This undated photo provided by Reading Anthracite on April 29, 2015 shows the St. Nicholas Coal Breaker in Mahanoy City, Pa. In the early 20th century, St. Nicholas opened as the crown jewel of a relatively safer, more modern anthracite industry. The breaker and its twin at Locus Summit operated around the clock to meet the nation’s dwindling but still substantial need for anthracite. (Reading Anthracite via AP)

Coal-fired industrialization would go on to create kings of its own, in industry and in politics. Today, the economic outlook for coal is bleak, in part because of the urgent need to rein in its destabilizing effect on the climate. More than two centuries after Boulton’s promise, coal may finally be exiting the economic stage, making room for a new generation of energy technologies.  

What will be the social and political implications of coal’s fall?  Two of coal’s intrinsic features, its concentrated form and its highly polluting nature, were especially significant in shaping the power dynamics of the coal era.  We are starting to replace coal with technologies that are just the opposite — intrinsically dispersed, and environmentally much cleaner.  If we keep moving in this direction, the consequences will be particularly profound. Coal’s retreat promises to reshape the world again, and as we start to consider what that will mean, we can find clues in the history of coal’s rise. 

The piece continues, with some sharp analysis of the current situation we find ourselves in:

The coal industry blames its current woes  on what it calls President Obama’s “war on coal,” but coal’s problems run much deeper.  Climate change isn’t going away, and as carbon dioxide concentrations and global temperatures keep rising, so too will the pressure to move away from coal, which emits much more carbon per unit of energy than other fuels. Even with our reduced dependence on coal, the nation’s coal plants still emit more carbon than all its cars, trucks and buses combined.  

It’s possible that a Republican in the White House could reverse some of the regulation that is making coal less competitive, but in the long run coal is unlikely to see anything more than a long, managed decline in its national importance.  

So what will be the social and political implications of coal’s decline?  Obviously, it will mean less influence for the coal industry and job losses in mining regions, continuing a decades-long trend in some places as the industry has mechanized. The economic hardship that coal communities face is real.  It can be reduced through planning, diversifying local economies and retraining workers, but there are no easy solutions.  Coal is not the major employer it once was; in Kentucky, for example, less than  1 percent of the state’s workforce is employed by the mines, but that is small consolation to those facing job losses.        

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Jim Justice sued … again

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Jim Justice

In this July 2, 2010 file photo released by The Greenbrier Resort, The Greenbrier Resort owner and chairman Jim Justice attends the gala opening of The Greenbrier Casino Club, in White Sulphur Springs, W.Va.  (AP Photo/Evan Agostini for The Greenbrier Resort, File)

Last evening, The Associated Press picked up on a new lawsuit filed against billionaire coal operator/businessman/gubernatorial candidate Jim Justice:

A lawsuit says two of billionaire Jim Justice’s affiliated companies owe $2 million from a 2013 coal deal.

In Tuesday’s complaint in Beckley federal court, Pennsylvania resident Thomas K. Lampert sued Tams Management, Inc. in Beckley and Southern Coal Corporation, a Delaware company doing business in Roanoke, Virginia.

The lawsuit says the companies didn’t pay $2 million from a March 2013 agreement for equity and membership interests in Newgate Development of Beckley, LLC.

It says Lampert’s trust never received the agreed-upon $4 per ton for the first 500,000 tons of coal mined and sold.

The AP report was short, and didn’t contain these interesting details from the suit:

One such specified act or omission is any failure to comply with the “Purchaser Permit Approval Obligation,” whereby Tams was required to pursue and secure
approval, within ninety (90) days, of the transfer of all applicable permits for the Three Marie Mine located in the Slab Fork District of Raleigh County, West Virginia.

Tams further agreed that “time shall be of the essence” with respect to the Purchaser Permit Approval Obligation, and that any failure to meet the Purchaser Permit Approval Obligation “shall be a material event of default.”

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Coals War

I have to admit that the first thing I thought of when I saw the social media postings about the Politico piece, “Inside the war on coal,” was: Why did a reporter as good as Michael Grunwald fall into the trap of calling something a “war” that simply isn’t a war. But perhaps I just need to accept the fact that the industry PR people who thought up the phrase earned their money and, despite my  best efforts on this blog (see War is war: Why not call coal debate something else?),  nobody else is going to start calling what’s happening to coal something else.

As I read on through this piece, though, there is much that folks in places like the coalfields of West Virginia should read. Mike nails a lot of this, as he very often does:

Coal still helps keep our lights on, generating nearly 40 percent of U.S. power. But it generated more than 50 percent just over a decade ago, and the big question now is how rapidly its decline will continue. Almost every watt of new generating capacity is coming from natural gas, wind or solar … Utilities no longer even bother to propose new coal plants to replace the old ones they retire. Coal industry stocks are tanking, and analysts are predicting a new wave of coal bankruptcies.

This is a big deal, because coal is America’s top source of greenhouse gases, and coal retirements are the main reason U.S. carbon emissions have declined 10 percent in a decade.

But, a significant strength of this piece is that it doesn’t, as much journalism on these topics does today, pretend that far-off global concerns about climate change are the only downside to coal:

Coal is also America’s top source of mercury, sulfur dioxide and other toxic air pollutants, so fewer coal plants also means less asthma and lung disease—not to mention fewer coal-ash spills and coal-mining disasters.

And, he notes something that I’ve written about many times before — that President Obama has not always been nearly as tough on coal as industry mouthpieces would have us all believe. There are also just tons of really interesting details about the Sierra Club’s “Beyond Coal” efforts to shut down power plants around the country. For example:

At a dry hearing in a drab courtroom in Oklahoma City, a methodical Beyond Coal attorney named Kristin Henry, whose bio identifies her as “one of the few environmentalists who would never be caught wearing Birkenstocks,” was pinning down an Oklahoma Gas & Electric executive with a barrage of wouldn’t-you-agrees, isn’t-it-trues, and would-it-be-fair-to-say’s. The power company was out of compliance with a federal air-quality rule called “regional haze,” so it was offering to convert one of its two coal plants into a natural gas plant. Henry knew she couldn’t stop that. But OG&E also wanted to install massive new scrubbers on the other plant so it could keep burning coal for decades to come. Henry was determined to stop that.

 In the 90 minutes Henry spent cross-examining OG&E’s Joseph Rowlett in early March, she didn’t ask a single question about climate or public health. She focused exclusively on OG&E’s request for the largest rate increase in state history, a 15 percent hike to finance the utility’s $700 million compliance plan. Through her deadpan, leading questions, she portrayed OG&E as a company desperate to get its customers to foot the bill to prop up an inefficient plant, pursuing retrofits it would never consider if its own shareholders had to swallow the costs, operating in a dream world where regional haze was coal’s only challenge. At one point, she got Rowlett to admit his calculations assumed there would be no additional coal regulations for the next thirty years, even though the EPA intends to finalize at least four new coal regulations this year alone.

 “Isn’t it true you’re assuming zero over the next 30 years?” Henry asked.

 Rowlett paused a few seconds. “That’s right,” he replied.


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Will a new year bring change to West Virginia?

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State of the State

Gov. Earl Ray Tomblin, delivers his annual State of the State speech on Wednesday, Jan. 14, 2015, in Charleston, W.Va. (AP Photo/Tyler Evert)

It was pretty surprising that Gov. Earl Ray Tomblin couldn’t bring himself to mention the Freedom Industries chemical leak and the resulting water crisis in his State of the State address earlier this week.

No, I wasn’t expecting that Governor Tomblin would suddenly become a public champion for tough environmental enforcement and use his annual speech to caution the Legislature’s new Republican leadership against rushing to gut SB 373’s new safety requirement for chemical tanks and mandates for public drinking water protections by utilities. But you would have thought the governor would at least use the water crisis as an example of how West Virginians pull together in times of trouble sorts of things that are so popular among our state’s political elite.

For the record, I asked Tomblin’s communications director, Chris Stadelman, why the governor left the whole thing out of the State of the State, and here’s what he said:

Gov. Tomblin understands that protecting our state’s water resources is an important issue for residents not only in the Kanawha Valley but throughout West Virginia. Water protection continues to be the focus of a number of efforts, and he will continue to review what improvements we need to make. The Jan. 9, 2014, chemical leak was discussed in depth last week, including the release of an After Action Report by Gov. Tomblin, so the State of the State focused on other issues.

Fair enough. But when the governor then uses his speech to go on and on about the great benefits he sees to the boom in natural gas drilling and production in the state’s Marcellus Shale — all the while ignoring repeated calls by state-hired experts and outside scientists (see here, here, here and here, just for example) for more protections for citizens in the gas patch — well, that sends a pretty clear message to West Virginians who were hoping Governor Tomblin and other state officials had learned something from what happened back in January 2014.

For folks who live with the Marcellus boom’s negative impacts, it had to be especially hard to take for the governor to tout passage of the 2011 Horizontal Drilling Act as “comprehensive legislation.” Part of the deal when that law was enacted was that certain issues would not be dealt with, but put off for additional study by the DEP. Those studies are done, and they recommend more protections for citizens and the environment, yet Governor Tomblin and the Legislature pretend none of that ever happened.

secretary-randy-huffman-portrait_small2And this from Governor Tomblin in his speech comes less than a week after DEP Secretary Randy Huffman appeared at a citizen group-sponsored event to mark the anniversary of the Freedom leak and promised to work to block industry from removing the statewide “Category A” drinking water protections currently given to all West Virginia rivers and streams:

That’s taking us backward. That’s a policy, a rule change, that we just can’t allow to happen. I hope it never comes up again, and it’s  a discussion that we don’t have to have.

What struck me there was Randy’s use of the plural pronouns … “taking us backward” and especially a rule change that “we can’t just can’t allow to happen.”

There’s plenty that citizen groups and Randy Huffman don’t agree on … mountaintop removal comes to mind. You’re not going to get Randy on board to outlaw that practice, and the DEP’s proposed changes in state water pollution permits for coal mining are certainly something that the industry very much wants, and environmental groups hope to somehow find a way to stop. And DEP is on board with Governor Tomblin’s continued insistence on fighting against efforts to do something about coal’s contributions to global warming.

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Gag order in Blankenship case criticized

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Mine Explosion Congress

We reported in in yesterday’s Gazette about U.S. Magistrate Judge R. Clarke VanDervort refusing a request from longtime Massey Energy CEO Don Blankenship to delay his arraignment on the criminal indictment filed against Blankenship last week. But we weren’t able to explain why the judge did so. If you go to the U.S. District Court for the Southern District of West Virginia‘s PACER computer page, and try to download the judge’s order, this is what you see:

pacer screen

It’s a bit ironic that PACER stands for “Public Access to Court Electronic Records,”  given that records of the U.S. vs. Blankenship are anything but public. Even the indictment — which was initially posted publicly and distributed via email by U.S. Attorney Booth Goodwin’s office, has been removed from public view. Goodwin’s office, apparently worried about violating the judge’s gag order, removed both its press release — a document that merely quoted the indictment and didn’t include any direct quotes from Goodwin — and the indictment from its website. We’ve posted the press release here and the indictment here.

judgebergerIn fact, even U.S. District Judge Irene Berger’s gag order isn’t available to the public through PACER. The clerk’s office in Beckley did finally email copies of it to local media outlets, and we’ve posted it here.  These two sentences — which contain no citations to case law allowing such a gag order — are the only explanation we have of the judge’s action:

The Court observes that the Defendant and the matters which are referenced in the indictment have been the subject of publicity. After careful consideration and in light of the prior publicity, the Court finds it necessary to take precautions to insure that the Government and the Defendant can seat jurors who can be fair and impartial and whose verdict is based only upon evidence presented during trial.

It’s worth noting that neither the government nor Blankenship’s defense team asked for this gag order. The judge did it on her own. And now, she’s taking some criticism for it.

In an editorial that generally praised the government for pursuing this prosecution, the Lexington Herald-Leader said:

The judge’s stated concern is that potential jurors will be biased by pre-trial publicity. But seating an impartial jury can be accomplished without trampling the First Amendment rights of individuals to speak and the media to report the news.

Transparency is especially critical to public trust in the prosecution of Blankenship because of his history of influencing the courts.

Blankenship in 2004 spent $2.5 million on electing a judge to the West Virginia Supreme Court who then cast deciding votes in Blankenship’s favor in a potentially expensive lawsuit, a ruling the U.S. Supreme Court eventually overturned.

Berger should revoke the gag order.

And over at West Virginia MetroNews, Hoppy Kercheval wrote a commentary headlined, “Judge Berger’s gag order in Blankenship case goes too far,” in which he wrote:

Berger is in a tough spot. She’s presiding over a high profile case. Blankenship faces four charges connected with the operation of the Upper Big Branch mine in Raleigh County where 29 miners died in a 2010 explosion.

The disaster, and Blankenship himself, have been the subject of intense public interest, and thus extensive press coverage.  If the case comes to trial it will draw national attention. Still, West Virginia Press Association executive director Don Smith believes the judge overreached.

“We certainly understand Judge Berger’s position and her concerns about seating a jury, but locking down all the information, all the court records… that goes too far,” Smith told me on “Talkline” Tuesday.

Hoppy continued:

More practically speaking, the gag order in the Blankenship case won’t stop pre-trial coverage, but it may distort it, says the First Amendment Center’s Gene Policinski. “It’s going to take the most informed people out of the discussion,” Policinski told me. “You’re condemning the public to less informed, but not less voluminous coverage.”

Trials, and proceedings leading up to them, are public, with some limited exceptions. That’s guaranteed in the Sixth Amendment, and for good reason. The bright light of openness helps preserve and protect public confidence in the judicial system.

Irene Berger is an experienced and respected adjudicator on the federal bench. Her desire to conduct a fair and impartial proceeding in this case is unquestioned. However the judge should have the same level of respect for the press and the public’s ability—and their right—to follow the Blankenship case unfettered.


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.

5 more things about the Don Blankenship indictment

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Gazette file photo by Chip Ellis

There’s been a lot written already about the indictment of longtime Massey Energy CEO Don Blankenship (see here, here, here and here for Gazette stories), but there are a few things that readers may have overlooked and are worth knowing:

1.  Prosecutors did not charge Blankenship with actually causing the April 5, 2010, explosion that killed 29 miners at Massey’s Upper Big Branch Mine.

Certainly, the 43-page grand jury indictment mentions the mine disaster, and it alleges that Blankenship was personally an “operator” of the mine who took part in a conspiracy to violate key safety standards that four different investigations (see here, here, here and here) said led to the explosion. But U.S. Attorney Booth Goodwin and Assistant U.S. Attorney Steve Ruby stopped just short of blaming Blankenship, of alleging that blowing up the mine was one of his crimes.

Doing so avoids any eventual criminal trial turning into a “battle of experts,” and may remove some of the ability of Blankenship’s defense team to trot out his much-promoted theory that the explosion was basically an “act of God,” caused by an unforeseeable inundation of natural gas.  Also, U.S. District Judge Irene Berger has not exactly been impressed thus far with the testimony of U.S. Mine Safety and Health Administration witnesses in previous Upper Big Branch cases (see here and here), and in at least one previous coal-mining disaster cases, the MSHA experts on explosions certainly could have done better.

2.  Financial crimes carry much longer maximum sentences than those for violating workplace safety standards.

Most news reports made clear that the total maximum sentence Blankenship would face if convicted on all four counts of the indictment would be 31 years. Of course, that’s the statutory maximum, and if doesn’t take into account federal sentencing guidelines.  But it hasn’t really been made clear that 20 years of that 32-year maximum sentence would come from Count 4 of the indictment, which charges Blankenship with a violation of 15 U.S.C. 78ff. The count alleges that Blankenship made untrue statements to the investing public when Massey defended its corporate safety record after the mine disaster.

Two other counts of the indictment — Count 2 charging Blankenship with conspiracy to defraud MSHA by advance notice of inspections and Count 3 charging him with making false statements to the U.S. Securities and Exchange Commission — each carry maximum jail sentences of 5 years. The allegation that actually involves unsafe mining practices is Count 1, which alleges a conspiracy to violate federal mine safety standards.  It carries a maximum sentence of 1 year in jail.

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A personnel carrier that once carried miners underground was left crushed and twisted by a 2006 explosion at the Kentucky Darby mine, which left five workers dead. Department of Labor/MSHA

Our friends at NPR News and the Mine Safety and Health News — Howard Berkes and Ellen Smith — have just posted some remarkable new work from a year-long investigation of what happens when coal mine operators never have to actually pay the safety fines that are assessed for violations of federal standards. Here’s how the web version of the NPR story starts:

Jack Blankenship was pinned facedown in the dirt, his neck, shoulder and back throbbing with pain.

He was alone on an errand, in a dark tunnel a mile underground at the Aracoma Alma coal mine in Logan County, W.Va., when a 300-pound slab of rock peeled away from the roof and slammed him to the ground. As his legs grew numb, he managed to free an arm and reach his radio. For two hours, he pressed the panic button that was supposed to bring help quickly.

“I couldn’t hardly breathe,” Blankenship remembered four years later. “I’d black out and come to. I was waiting to die. I’d already had my little talk with God.”

Aracoma Alma and then-owner Massey Energy had a history of serious safety problems, including falling rock. In the two years before Blankenship’s accident, the mine was cited by federal regulators more than 120 times for rock fall violations, according to records from federal regulators. That included inadequate roof support and deficient safety checks for loose rock.

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The ‘dominant narrative’ about coal’s decline

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It was interesting to watch this piece from VICE News about the campaign for West Virginia’s 3rd Congressional District, especially the footage of this comment from longtime Rep. Nick J. Rahall:

Coal is everything to our state of West Virginia … I have always stood for coal, am standing for coal, and will always stand for coal … Yeah, coal is in a slump now. But coal is going to come back.

I’d like to believe that Rep. Rahall knows better, that he understands well that the Obama administration isn’t the only pressure on Southern West Virginia coal, and that regardless of whether he and other opponents win their fight with the U.S. EPA, another boom in our southern coalfields simply isn’t just around the corner  (see also here).

The piece goes on to report:

… The dominant narrative around here is that Obama’s stringent regulations — thus his “war on coal” —  are to blame for the loss of coal mining jobs.

It does include this further context:

In reality, the downturn is largely due to dwindling reserves, the rise of natural gas, and the automation of the mining industry, which has replaced workers with machines.

But that’s just a mention, almost in passing, in a nearly 15-minute piece that is mostly about this “dominant narrative.” So you have to wonder, why is the “war on coal” the dominant narrative. Of course, it’s partly because of the huge advertising campaign from the mining industry. But it’s also because that’s the way the national and local media keep framing things.

There’s another example out there today in this Associated Press dispatch:

LOGAN, W.Va. (AP) — The president of the West Virginia Coal Association reports a decrease in the number of coal mining sites in the state.

Bill Raney says the state has 96 active mining sites, down from 152 in 2013 and 184 in 2012. Media outlets report that Raney attributes the decline to uncertainty created by President Barack Obama’s administration.

Raney also says the industry is seeing a shift in production from mines in southern West Virginia to northern West Virginia. He attributes that to the scrubber technology added to northern power plants during the 1990s which enabled them to burn high-sulfur coal found in northern West Virginia, Pennsylvania, and Ohio.

That story, apparently picked up from the Logan Banner and WVOW-FM in Logan, will likely run in every paper in West Virginia, over the weekend before Tuesday’s general election.  And look at that sentence I put in bold type:

Media outlets report that Raney attributes the decline to uncertainty created by President Barack Obama’s administration.

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Coals War

Over the last few months, I’ve actually enjoyed avoiding the parachute journalism that’s always done this time of year by people with titles like “national correspondent” or “political editor”.   The television ads are bad enough, and now we’ve got to endure career campaign consultants insulting each other via social media. So it would be nice if we had more actual journalism — the kind that gives voters the sort of information that helps make good choices.

But last evening, I couldn’t help but point my browser over to The New York Times when I saw that they were promoting their latest take on West Virginia’s 3rd Congressional District race between longtime Democratic Rep. Nick J. Rahall and sometimes-Republican challenger Evan Jenkins. The story was headlined, “Race Tests Democrats’ Viability in West Virginia,” and written by Trip Gabriel, whose Twitter profile identifies him as “New York Times national correspondent covering politics and all things mid-Atlantic.”

The piece starts out this way:

“Pro-jobs. Pro-coal. Pro-life. Vote Republican!!!” reads a prominent sign coming into town.

And that ought to be the end of the story here in southern West Virginia, with its beleaguered mining industry and largely white population that fills the pews of evangelical churches on a Wednesday night as readily as on Sunday morning.

The region voted overwhelmingly Republican in the presidential contest two years ago, part of the historic defection of West Virginia Democrats, who hold a 2-to-1 registration advantage, from the national party over social issues like abortion and, more recently, opposition to environmental regulation.

And yet a Democratic congressman, Nick J. Rahall II, has defiantly held onto his seat here in the sparsely populated Third District, which runs from the rugged Appalachian coal fields in the west to the famed white-water rafting of the New River Gorge.

OK … let’s look at that last bit again:

… The sparsely populated Third District, which runs from the rugged Appalachian coal fields in the west to the famed white-water rafting of the New River Gorge.

Let’s let Trip have the “sparsely populated” part. The 3rd District’s roughly 610,000-person population is less than the average of about 711,000, though certainly congressional districts out west are far more “sparse” than in Southern West Virginia.  but “runs from the rugged Appalachian coal fields in the west to the famed white-water rafting of the New River Gorge”?


Our 3rd District starts along the Ohio River and stretches across the coalfields to the Virginia border. It’s great that Trip got to go to Bridge Day, but he’s putting pretty prose before geographic accuracy here. The line he was looking for was something like, “which runs from the Ohio River town of Huntington — made famous in the movie “We Are Marshall” — through the rugged coalfields and west to the Virginia border, where Greenbrier County is home to the famed Greenbrier Resort.

This is a little thing probably. And perhaps we should be glad the Times left out the word “hardscrabble” when it published this particular parachute story.

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As we enter the home stretch of this election season, an issue that continues to get little attention from the local media — and no attention at all from major candidates — is one we wrote about in this recent Gazette story:

A new West Virginia University study has found that dust from mountaintop removal coal-mining operations promotes the growth of lung cancer tumors.

The study results “provide new evidence for the carcinogenic potential” of mountaintop removal dust emissions and “support further risk assessment and implementation of exposure control” for that dust, according to the paper, published online Tuesday by the journal Environmental Science and Technology.

“A growing body of evidence links living in proximity to [mountaintop removal] activities to greater risk of serious health consequences, including significantly higher reports of cancer,” the study said. “Our finding strengthens previous epidemiological studies linking [mountaintop removal] to increased incidence of lung cancer, and supports adoption of prevention strategies and exposure control.”

It would be one thing if — as some political leaders continually try to suggest — this was just one isolated study.  But it’s not. It’s a growing body of studies that continues to present a compelling case that something is going on. And, of course, while the human health studies are the most troubling, the evidence of environmental destruction from mountaintop removal also continues to grow.

Just this week, there was another important paper out of the University of Kentucky, reporting on how mountaintop removal is reducing the salamander population in Kentucky’s coalfields. This is a follow-up paper to one that produced a similar finding in West Virginia.  We wrote about that paper in a Gazette story that summarized the findings of a study many of the overlooked environmental effects of mountaintop removal:

Mountaintop removal is having frequently overlooked impacts on forests, biodiversity, climate and public health, and an updated federal review is needed to more fully examine those issues, according to a new study by government and university scientists.

The study warns that mountaintop removal is not only causing significant changes in the Appalachian topography, but also could be worsening the impacts of global warming.

Authors of the study, published in the peer-reviewed journal BioScience, say that legal and regulatory focus on water quality impacts has led to less research on how mountaintop removal affects forests, soils, biodiversity and the mountains themselves.

“Evaluation of terrestrial impacts is needed to complement the growing literature on aquatic impacts in order for an environmental assessment of the practice to be comprehensive,” states the paper, written by scientists from the U.S. Environmental Protection Agency, the U.S. Geological Survey, Rider University and West Virginia University.

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How soon we forget: Mine safety in W.Va.

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One way that West Virginia lawmakers seem to like to avoid taking stronger action on important public health and safety issues is to put off much-needed reforms until someone does a study or a report on the issue. There’s nothing necessarily wrong with wanting more and better information — assuming that you plan to actually look at that information and follow up on the public policy implications of it.

That’s not always what really happens at the West Virginia Legislature. Just look, for example, at how lawmakers do nothing about the ongoing problems related to the Marcellus Shale gas-drilling boom, at the same time that they move terribly quickly to protect a Department of Environmental Protection decision to ignore landfill intake limits to ensure drillers have somewhere to dump their waste.

This method of ignoring important issues was on display yesterday at the Capitol, where a special legislative committee on Labor and Worker Safety Issues met during this month’s interim session.

The committee was scheduled to hear a presentation from Eugene White (above, left), director of the state Office of Miners’ Health, Safety and Training, about this report, That report was required by Gov. Earl Ray Tomblin’s mine safety bill, passed in 2012. That legislation mandated:

The director shall, by December 31, 2013, report to the Legislature and Governor on the need for revisions in the state’s underground mine safety enforcement procedures. The director shall initiate the study using appropriate academic resources and mining safety organizations to conduct a program review of state enforcement procedures to evaluate what reforms will assure that mining operations follow state mandated safety protocols. The report shall include recommended legislation, rules and policies, consider various options for improving inspections, accountability and equitable and timely administrative procedures that cause remediation of hazardous working conditions.

As readers may recall, while Gov. Tomblin, his handlers and a lot of lawmakers and cheerleaders called the governor’s legislation comprehensive, it was really anything but (see here, here and here). We also know that the Tomblin administration was slow to actually put in effect the few tough changes included in the governor’s bill.  And the point of this report was to outline other needed changes, so lawmakers could act on those, based on the facts and recommendations in this report.

First off, though, this report was completed and provided to lawmakers nearly a year ago now.  We wrote a story about it in early January, explaining:

Gov. Earl Ray Tomblin and legislative leaders need to enact a long list of additional reforms to protect the health and safety of West Virginia’s coal miners, according to a new state report.

The report from the state Office of Miners’ Health, Safety and Training urges revised inspection and enforcement measures, tougher standards for preventing mine explosions and a requirement for proximity-detection systems that would prevent common crushing and pinning accidents.

In the 85-page report, Tomblin and lawmakers also are urged to provide more money for coal mine regulation and safety training, and increase pay so the agency can maintain a quality inspection staff.

“West Virginia has repeatedly had the highest coal mine fatality and accident totals in the country,” the report says. “The state must correct that.”

But, the only thing that lawmakers did about mine safety during last year’s session was take action to confirm it was just fine with them that the state Board of Coal Mine Health and Safety didn’t follow a mandate to toughen methane monitoring n the state’s underground mines.

The only real safety reform that took place this year in West Virginia’s mines was a new rule to require proximity detection devices on certain mining equipment. But that rule allows mine operators quite a long time to comply, and it was passed only after repeated demands for action from mine widow and safety advocate Caitlin O’Dell.

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It’s been about 15 years ago now. I was at an environmental journalism conference, attending a lunch session about climate change that included representatives of some of the big national and international environmental groups, along with a few industry people and some scientists.  The environmental groups were, of course, rightly making their case — as they continue to today —  that urgent action was needed to deal with carbon dioxide emissions

This was a long time ago and I was younger and probably even dumber than I am now. But I tried several times to engage these folks about what they thought a national climate policy should include in the way of economic, educational, or other help for coalfield communities where any mandated reduction in greenhouse gas emissions would almost certainly mean a significant decrease in about the only kind of good-paying jobs around.

Well, you would have thought I was from Mars. I mean, some folks were reasonably arguing that they were environmental groups. It was their job to work to protect the environment, public health and all that stuff. Their role in the process wasn’t to develop economic transition policies. They weren’t against those things necessarily. It just wasn’t their passion, and they didn’t think it was their job. But some folks were more hostile to my queries. They lectured me about how evil coal-mining was, and how they just didn’t understand why anyone in West Virginia wouldn’t welcome a complete end to the practice. Those folks had never been here. They certainly hadn’t been to a coal mine. They never came out and said so, but I certainly walked away feeling like they didn’t really care much what happened in places like Logan County, W.Va., as long as they got some sort of climate policy enacted.

I’ve been replaying those discussions a little in my mind this morning, and looking back at a piece that David Roberts wrote for Grist called, Should the feds bail out coal miners?  The piece was a follow-up to an earlier post he wrote called Democrats: Coal Country is just not that into you.

Now, let me make a disclaimer: I don’t really know David Roberts. Never met him. I do read his stuff all the time — and I certainly envy his great adventure taking a year away from social media. I’m a fan of his work. And I’m absolutely not trying to say that David Roberts doesn’t care about people in places like Logan County. From what I read, he just doesn’t strike me as that kind of guy. Far from it.

But I found his piece yesterday to not be nearly as thoughtful as I’ve come to expect from him. As he said on Twitter, maybe that’s just because I disagree with him about it.  But he wrote himself that it was “all pretty cursory” and just “idle musings,” and that he hoped what he wrote would get a discussion going. You should go read what he wrote, and maybe think about commenting.

David Roberts makes some good points. For example, he writes that some of the broad sort of New Deal programs that might really jump-start an economic transition in the Appalachian coalfields have little chance of getting through Congress right now. He points out that coal miners aren’t the only workers hurting in this country, and recommends broader programs that will help all workers, not just miners.

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Obama Mine Explosion

The lights on the helmets are turned on at the end of a memorial service for the miners killed in the Upper Big Branch Mine, in Beckley, W.Va., Sunday, April 25, 2010.(AP Photo/Alex Brandon)

We’ve talked before on this blog about the dangers of the sort of public relations that aims to show great success on making coal mines safer and healthier places for miners, and about the media coverage that falls into this trap.

I couldn’t help thinking about that last week, when The Associated Press made like it had some huge scoop with this story on a U.S. Mine Safety and Health Administration announcement:

The number of chronic safety violators among mine operators has fallen sharply in recent years, according to government figures released Thursday …

The government puts repeat safety offenders on its Pattern of Violations, or POV, list, which is reserved for mines that pose the greatest risk to the safety and health of miners. A POV designation means that if a federal inspector were to find another significant and substantial violation, an order would be issued to withdraw miners from a specific area, effectively ceasing operations of that area until the problem is corrected there.

Prior to 2010, according to MSHA, no mine had been put on that list. But partly in response to the 2010 Upper Big Branch explosion in West Virginia, which killed 29 miners, MSHA toughened its enforcement that year and began citing mines for POV actions. Since then, seven mines have been on the POV list.

In its 2010 screening, 51 chronic violators were identified for further review among mine operators. But for this year’s screening, that number had dropped to 12. The biggest reduction came in coal mines, which dropped from 42 in 2010 to six this year.

The numbers were obtained by The Associated Press ahead of their official release on Thursday.

JoeMainHouseMarch2012MSHA issued a press release and posted a blog entry from agency chief Joe Main, who touted what he said are the results of MSHA enforcement initiatives, saying they had created a “a game changer in mine safety and mine safety culture”:

While we can’t measure how many lives have been saved, or how many illnesses and injuries have been prevented, we do know these reforms have worked to make mines safer and made a real difference in the safety, health and wellbeing of our nation’s miners. That’s what really counts.

The MSHA announcement was based on a couple of key statistics:

— The number of mines identified as chronic violators has substantially declined. In 2010, when we first used the revised Potential Pattern of Violations screening tool, 51 mines were identified for further review. Using the same measuring stick, 12 mines were identified in this year’s screening – a 76% reduction in the universe of chronic violators. The most significant reduction was in the coal sector, which accounted for 42 screened mines in 2010, but only 6 in the recent 2014 screening – an 86% reduction.

— The unacceptable violation records once held by the top chronic violators such as Upper Big Branch are becoming a thing of the past. The top 12 of the 51 mines identified in the 2010 screening had been cited for 5,431 total violations, 2,050 of which were S&S violations. In contrast, the 12 mines identified in 2014 had been cited for 1,952 total violations, 857 of which were S&S violations.  This is a 64% reduction in total violations and a 58% reduction in S&S violations.

— Mines undergoing the POV process have significantly improved compliance and injury rates. We have measured the effectiveness of these reforms on mines undergoing the PPOV and POV process by comparing the results of mine inspections 6 months prior to the POV and PPOV actions to inspection results following the action. Since 2010, among the mines that were placed on POV or went through the potential POV process under the prior rule, the number of S&S violations has dropped by 62%, total violations fell by 38%, and, notably, unwarrantable failure violations dropped by 81%. In addition, the operator-reported rate of lost-time injuries in these mines went down 48%.

These are good developments. Don’t get me wrong about that. To the extent that increased enforcement and reduced violations — and most importantly curbed injuries and deaths — Joe Main, MSHA and the Obama administration deserve credit for their efforts to make those things happen.

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There’s an interesting piece out today from West Virginia Public Broadcasting’s Ashton Marra, reporting from the annual Bluefield Coal Symposium.  The part that jumped out at me was this, quoting Rep. Nick J. Rahall:

Rahall said economic diversification is something the state should see the federal government as a partner in doing, not as the entity that will take the lead.

“Coal is number one, make no mistake about it, has been, is, always will be, we will never turn our backs on the coal industry,” he said, “but I think [we should] diversify our economy and have other industries in place so that we can have the retraining or other places for dislocated coal miners however temporary it may be to go and work.”

It’s probably a step forward to hear Rep. Rahall say the word “diversify,” especially at a coal event in front of a coal crowd. Rep. Rahall has said before that he understands that the coal in his district is running out, but such comments seem few and far between as the Republicans and their out-of-state money continue to try to defeat his re-election bids.

Still, read this part of it again:

… But I think [we should] diversify our economy and have other industries in place so that we can have the retraining or other places for the coal miners however temporary it may be to go and work.”

What’s Rep. Rahall talking about? The forecasts from the U.S. Department of Energy certainly don’t show that the current and drastic decline in his district’s coal industry is in any real way temporary. I asked Rep. Rahall’s office for any data they have suggesting the Central Appalachian coal downturn is only temporary, and a spokesman sent me this quote — which as you can see, doesn’t really answer the question at all:

As I have made clear many times, coal is, and will continue to be, a driver of West Virginia’s economy. At the same time, I believe that broadening and diversifying the economy is important to helping to provide greater stability during the peaks and valleys of coal production and employment.

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New coal fight: Bob Murray vs. Chris Cline

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Robert Murray

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.