Coal Tattoo

Jim Justice

West Virginia billionaire businessman Jim Justice announces that he is running for governor of West Virginia as a Democrat in 2016 in White Sulphur Springs , W.Va., Monday, May 11, 2015. (AP Photo/Chris Tilley)

There was troubling news out of the coalfields of Kentucky over the last few days about billionaire coal operator Jim Justice, the Democratic candidate for governor here in West Virginia. Here’s the Courier-Journal report from my friend Jim Bruggers:

Kentucky environmental regulators spent the weekend and Monday investigating a mudslide at a Pike County surface mine owned by West Virginia coal baron Jim Justice that they say contributed to local, damaging flooding last week.

State officials Monday confirmed their investigation was centered on Justice’s Bent Mountain mining operations, which had significant reclamation deadlines last year and are the subject of ongoing enforcement activities.

As the C-J explained, the local Appalachian News-Express reports that:

… Water suddenly came rushing out of a hollow, damaging several homes in the community of Meta, late Thursday, about eight miles outside Pikeville.

This all comes in the wake of one report in the C-J that Justice’s required mine reclamation projects in Kentucky are missing cleanup deadlines and a second story that — shockingly — Justice needs more time to finish reclamation at Kentucky operations, including at least through the end of the year to fix a major, three-mile-long “highwall” in Pike County.

All of this undoubtedly provides more fodder for the Republican campaign this fall in support of Justice’s GOP opponent for governor, current Senate President Bill Cole. Whether Justice and the Democrats like it, this stuff is fair game, especially since Justice’s major argument for electing him is that he’s such a successful businessman. If he wants voters to believe he would run the state the way he runs his mining operations, then it’s reasonable for the campaign to include a focus on exactly what Justice’s business model looks like.

At the same time, if the Cole campaign and its supporters want to go down this road, it’s also worth asking them about their own views for regulating the coal industry to stop incidents like the one over the weekend in Kentucky.



WVDEP sued over reclamation site pollution

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As so much attention swirls around the potential environmental consequences of the rash of coal industry bankruptcies, two new lawsuits filed today by the West Virginia Highlands Conservancy and other groups provide some much needed context to that issue.

Here’s the press release, issued by the Sierra Club:

Today, a coalition of environmental and community groups filed two lawsuits in federal district courts in West Virginia to hold the state accountable for mining pollution generated from seven former mine sites now owned and managed by the WV Department of Environmental Protection (WVDEP).

When mine operators in West Virginia go out of business before they complete all of the reclamation required by law, the state becomes responsible for finishing the clean-up, including managing any water pollution coming from the site. However, coal mines continue to generate harmful water pollution long after the mines are shut down. Today’s lawsuits allege that West Virginia is violating the Clean Water Act by discharging a variety of mining pollutants at levels that exceed water quality standards and permit limits from sites in Barbour, Nicholas, and Preston counties.

The lawsuits — I’ve posted them here and here — target alleged violations at sites where the DEP holds water pollution permits as part of its troubled Special Reclamation program, where the agency treats pollution left by bankrupt mining operations, but the sites still involve some regulated discharge. In the end, what environmental groups really want is to force the state to provide more funding — hopefully from the coal industry — to ensure that discharges from these and other sites don’t violate permit limits.

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

By burying their heads in the sand these past two decades and ignoring how the looming crisis of bankrupt coal companies would further deplete the state’s inadequate Special Reclamation Fund, West Virginia lawmakers have virtually guaranteed that citizens and taxpayers will be the ones responsible for cleaning up these coal company messes.

Kelley Gillenwater, spokeswoman for the WVDEP, declined to comment on the lawsuits.

Mining’s toxic legacy: The same old story

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FILE - In this Thursday, Aug. 6, 2015 file photo, people kayak in the Animas River near Durango, Colo., in water colored yellow from a mine waste spill. A crew supervised by the U.S. Environmental Protection Agency has been blamed for causing the spill while attempting to clean up the area near the abandoned Gold King Mine. Tribal officials with the Navajo Nation declared an emergency on Monday, Aug. 10, as the massive plume of contaminated wastewater flowed down the San Juan River toward Lake Powell in Utah, which supplies much of the water to the Southwest. (Jerry McBride/The Durango Herald via AP, FILE) MANDATORY CREDIT

In this Thursday, Aug. 6, 2015 file photo, people kayak in the Animas River near Durango, Colo., in water colored yellow from a mine waste spill.  (Jerry McBride/The Durango Herald via AP, FILE)

The photos just keep coming from the terrible gold-mine waste spill into the Animas River in Colorado, and as more information continues to come out, the story sounds worse and worse. The Denver Post reports:

The EPA on Monday expanded its response to the Animas River mining disaster, delivering bottled water in Colorado, New Mexico and Navajo Country and testing for contaminants as far as Lake Powell.

The acidic heavy metals that flooded into Cement Creek and the Animas in southwestern Colorado — including arsenic, lead, copper and cadmium — initially broke state water quality limits, based on data the Environmental Protection Agency has released.

Gov. John Hickenlooper declared a disaster. New Mexico also declared a disaster. California officials have been calling the EPA about water supply implications. Residents along the Animas near Durango, with about 17,000 people, swamped La Plata County with requests for well tests.

As The Wall Street Journal reported:

Environmental Protection Agency Administrator Gina McCarthy speaks at a news conference on a recent Colorado mine spill after speaking at a Resources for the Future policy leadership forum, Tuesday, Aug. 11, 2015, in Washington. (AP Photo/Andrew Harnik)

Environmental Protection Agency Administrator Gina McCarthy apologized Tuesday for a mine spill in Colorado that her agency caused last week and planned to travel to the area Wednesday, amid increasing criticism from lawmakers about the EPA’s response.

Ms. McCarthy said at a news conference in Washington that she was still learning about what happened, responding to a question about whether the EPA was reviewing changes in how it cleans up old mines. “I don’t have a complete understanding of anything that went on in there,” she said. “If there is something that went wrong, we want to make sure it never goes wrong again.”

One thing that’s troubling, of course, is the inability of public agencies like EPA to really give the public what it needs — sound information. From the Denver paper’s report:

… Five days after an EPA crew triggered the Gold King mine blowout, EPA regional chief Shaun McGrath still could not give an assessment of potential harm to people.

The spread of toxic heavy metals was such that authorities will block access to the Animas at least until Aug. 17 while the EPA develops “risk-screening criteria” and data show that water has returned to “pre-event conditions,” McGrath said.

While it appears EPA has provided some data on water sampling, here’s what the Post also reported:

EPA officials declined to discuss contamination levels. Colorado health and mining officials, who are supporting the EPA, declined to provide requested information or discuss the contamination.

Sound familiar to anyone who lived through the water crisis that followed the January chemical spill at Freedom Industries here in West Virginia’s Kanawha Valley? See here, here and here if you’ve forgotten how hard it was to get straight answers.

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Water quality: Are we learning from the past?

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Dozens of miners turned out this week for a state DEP public hearing on water quality standards. Photo by Ken Ward Jr.

In the wake of Tuesday’s state Department of Environmental Protection public hearing on water quality standards, it seems a shame to allow the irony of the evening’s events to go unmentioned.

As the photo above shows, the West Virginia Coal Association did a find job of turning out a few dozen coal miners to sit at the hearing to show their support for the industry-pushed rule changes on aluminum and selenium that DEP (under orders from the Legislature) has proposed. Only two of the miners spoke, but I’m sure DEP got the message.

Still, let’s remember that there were really two sets of water quality rules on the agenda for the public hearing. The first were the changes that environmental groups say will clearly weaken pollution limits for aluminum and selenium and complicate the enforcement for both toxic chemicals. The other is a pair of site-specific water quality variances that DEP says are needed to allow it a broader — and less bound by court-mandated permit requirements — approach to cleaning up streams in the Tygart and Cheat river watersheds that continue to be burdened by acid mine drainage from previous coal mining activities.

Now, the industry’s argument in favor of the first set of changes — especially the one for selenium — is that the state’s current limits are unnecessarily stringent, and are making things even worse for the coal industry. The politicians who showed up with Tuesday night’s crowd of miners kept having to stop themselves from turning the event into another bash-Obama and the EPA rally, rather than a hearing at which the state DEP was giving mine operators what they want.

The thing is, while it’s true that citizen group lawsuits and court ruling have forced companies to spend money cleaning up selenium pollution — in one case helping push Patriot Coal to abandon mountaintop removal — it’s also true that scientists have found selenium is a serious problem for aquatic life in West Virginia streams (see here and here).

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It’s been a while since we checked in on the status of West Virginia’s Special Reclamation Fund, the pot of money that’s supposed to ensure mines abandoned by operators since passage of the 1977 federal strip mine law are properly reclaimed. Given the ongoing downward spiral of the nation’s coal industry, there have been several recent media accounts about potential problems, given huge reclamation liabilities of several major coal producers (see here, here and here).

So, on Thursday morning, I decided to drop by the regular meeting of the state Department of Environmental Protection’s Special Reclamation Fund Advisory Council, a panel formed to keep an eye on the SRF and make sure it’s adequately funded. (By the way, I posted a copy of the fund’s most recent annual report here, for anyone who is interested)

The first thing on the agenda was a presentation from DEP officials that, in some ways, boils down to the agency’s continued unhappiness with having to live with court rulings that require pollution discharge permits for the SRF’s water treatment sites that have point-source discharges (see here and here for background on that).  DEP officials believe that these permits and their associated pollution limits aren’t really doing much to improve watershed-wide water quality, especially in areas affected by acid mine drainage.  Agency officials believe other approaches might do more good, and use money more wisely.

Maybe they’re right about that. But there’s the little issue of the Clean Water Act, and its mandate that no pollution discharges be allowed without permits. Nobody from DEP who attended Thursday’s meeting could really explain exactly how they could avoid the point source permits and still comply with the law.

Anyway, I think the big story at the SRF Advisory Council meeting was really discussion of this new letter to DEP Secretary Randy Huffman from Roger Calhoun, director of the Charleston field office of the federal Office of Surface Mining Reclamation and Enforcement:

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More water testing troubles … in Kentucky

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

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

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

The Courier-Journal in Louisville explained:

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

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

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

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

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

What’s EPA up to on selenium?

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Gina McCarthy

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Alpha reaches deal on water pollution

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The Associated Press is out this afternoon with this news:

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

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

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

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

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


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


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

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

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

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

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

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

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Gazette photo by Lawrence Pierce

It’s not been so terribly long ago that West Virginia leaders were focused on turning the page on Massey Energy and the Upper Big Branch Mine Disaster.  The result was lawmakers passed a terribly weak coal-mine safety bill that’s never been fully enforced, and our state’s miners continue to die on the job (see here, here and here, for example) — the inevitable result, some of our leaders would have us believe, of doing “the heavy lifting” for our nation.

There was also a rush a few years ago to move on from discussing serious issues about the Marcellus Shale natural gas drilling boom, following passage of a much-weakened piece of legislation Gov. Earl Ray Tomblin and his staff worked out with industry lobbyists.  This legislative session, we’ve seen quite a push on to legalize the Department of Environmental Protection’s move to assure gas drillers a place to put the huge amounts of waste their practices generate. But, we’ve seen precious little from lawmakers about the many critical issues that weren’t addressed during that special session in December 2011 (see here, here, here and here).

And certainly, if there has been any talk at the West Virginia Legislature about the climate crisis, it’s been through pandering resolutions aimed at doing little but playing politics and continuing the do-as-little-as-possible approach to these sorts of problems that results in disasters like the Jan. 9 Freedom Industries chemical spill that contaminated the drinking water of 300,000 West Virginians in a nine-county region.

Today on the House floor, we’ll get to see if the West Virginia Democrats who run that part of our government have learned anything in the last few months — let alone in the last few years, since that day in April 2010 when 29 coal miners got blown up at Upper Big Branch.

As I have written before, there are a lot of good things about SB373:

Like previous versions, it greatly expands on what was extremely limited language in West Virginia Code, simply giving the Department of Health and Human Resources authority to write rules concerning drinking water protections. Among the more significant moves by Chairman Tim Manchin is to strike from the bill most of those controversial exemptions that were originally proposed by the West Virginia Manufacturers Association, included in the governor’s bill, and carried over by the Senate and one previous House committee.

Largely, the bill would require state government to start doing what most experts say should have been done all along — actually take chemical inventory information, the location of various threats to public drinking water, and use that information to plan how to be sure those precious water supplies are protected.

The bill even had the West Virginia Environmental Council — seldom a group that’s satisfied with what lawmakers are doing — offering some support, with lead lobbyist Don Garvin saying at the end of last week:

Frankly, folks, there are a lot of good things included in this Judiciary draft bill. Is it perfect? No. But the provisions already included would provide significant new regulation for protecting water supplies across the state.

Now is not the time to start over. Now is the time for the House to pass their version of SB 373, and send it back to the Senate for its consideration.

Let’s get it done.

That was even before House Judiciary made some significant improvements, such as adding a requirement for long-term medical monitoring of residents impacted byt he Freedom Industries’ spill. But it was also before Tuesday evening’s actions by the House Finance Committee, removing that medical monitoring provision, eliminating a mandate for better “early warning” systems on West Virginia American Water’s Elk River Plant, and amending out a provision to block polluters located near drinking water intakes from getting streamlined water pollution permits like the one that allowed Freedom Industries to go without any significant inspections by the state Department of Environmental Protection. Commenting on the Finance Committee’s amendments, Gary Zuckett of West Virginia-Citizen Action said:

The treatment of the water bill in House Finance was in stark contrast to the deliberation of the other two committees. Whereas Health and Judiciary took two weeks to improve the Senate bill, Finance flushed their hard work down the drain in a few hours.

Right now, the legislative website lists at least 10 amendments scheduled to be considered today on the floor, including one that would put the long-term health study back in, another that would reinstate the early warning pollution monitoring, and another to allow for citizen enforcement of the new water law.

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Crunch time coming for chemical spill bill

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freedom aerial

Photo by Commercial Photography Services of West Virginia, via U.S.Chemical Safety Board

It’s been nearly two months since the coal-cleaning chemical Crude MCHM poured into the Elk River, contaminating the drinking water supply for 300,000 West Virginians. And we’re now just a week out from the end of the regular, 60-day session of the West Virginia Legislature. Clearly, crunch time is approaching for lawmakers.

There have perhaps been some modest improvements in the way political leadership at the Capitol is handling things in the wake of the Freedom Industries disaster.  A coal industry and WVDEP-backed weakening of the state’s water quality standard for aluminum appears to have been killed off. Some insiders say no one wanted to be out in front pushing a lessening of such standards right now, but it’s important to remember that the first instinct of some lawmakers — specifically the Senate Natural Resources Committee — was to go right along with what industry wanted, with few questions asked.

Clearly, there hasn’t been any wholesale movement — at least not yet — away from the typical way we do things, which is to talk a good game about protection water quality and public health, all the while going full-steam ahead with actions that do just the opposite.

But there’s also a very important opportunity to, at least where drinking water and the potential threats to it, especially from above-ground chemical storage tanks, are concerned take very real steps in a different direction — toward the public interest.

Late yesterday afternoon, the House Judiciary Committee’s leadership and staff unveiled the latest version of SB 373, the main legislative response to the water crisis. My colleague, David Gutman, describes the committee meeting in a Gazette story here, and the Daily Mail’s Dave Boucher has a story on the latest version of the bill here.

There’s much to like about the latest version of the bill. Like previous versions, it greatly expands on what was extremely limited language in West Virginia Code, simply giving the Department of Health and Human Resources authority to write rules concerning drinking water protections. Among the more significant moves by Chairman Tim Manchin is to strike from the bill most of those controversial exemptions that were originally proposed by the West Virginia Manufacturers Association, included in the governor’s bill, and carried over by the Senate and one previous House committee.

Largely, the bill would require state government to start doing what most experts say should have been done all along — actually take chemical inventory information, the location of various threats to public drinking water, and use that information to plan how to be sure those precious water supplies are protected.

Conspicuously absent from the bill right now, though, is any movement by the state to implement the previous recommendations by the U.S. Chemical Safety Board for a new chemical accident prevention program, both in Kanawha County and — perhaps — statewide.

Among the odd things that’s come up in the last few days is this development, as described by David Gutman:

Delegate Meshea Poore, D-Kanawha, asked Gov. Earl Ray Tomblin to call for the special session to focus solely on the water bill. She was joined by a bipartisan group of 26 other Delegates, including Minority Leader Tim Armstead, R-Kanawha.

“We will miss a golden opportunity to produce legislation that will instill a renewed sense of confidence in the administrative and legislative branches of West Virginia’s governance structure,” Poore said in the letter. “[A] resolution requires more time and concentration than the regular session affords.”

But House Speaker Tim Miley, D-Harrison, and Judiciary Chairman Tim Manchin, D-Marion, both said the special session was unnecessary.

“I regret that these members want to give up on passing a bill during the regular session when we still have plenty of time to perfect it,” Miley said in a news release.

On the one hand, there is an odd group of delegates supporting Delegate Poore’s request to delay this bill and deal with it during a special session. You have to wonder whether some of them have different motivations than simply providing time to write a better piece of legislation. Do some of the Republican simply hope to delay, and give industry more time to weaken the bill? Or is this at least partly about partisan politics, and trying to dredge up some squabbling between Democratic House leaders and their members?

Still, the reaction from Speaker Miley and Judiciary Chairman Tim Manchin was a bit over the top. You have to wonder why they simply didn’t respond by saying something like, “You know, a special session isn’t out of the question. But let’s see how far we can get, and then cross the bridge when we come to it.”

There’s no question that Chairman Manchin and his staff have put in a lot of time on their version of the bill.  They held a “stakeholder” meeting last weekend, and actually bothered to include environmental groups — something Gov. Earl Ray Tomblin and his people didn’t bother to do when they wrote their version of the legislation. Still, it was not a public meeting of the Judiciary Committee that anyone could attend or listen to on the Internet. The result is an 80-page “committee substitute” bill that was drafted in private, rather than molded through a public process of debating and voting on amendments to the version that was already on the table.

Some will say that’s just the way things are done, and in fact the only way things can get done, given the part-time nature of our Legislature, and the meager staffing and resources that lawmakers have at their disposal. But at some point process matters, and the process we’ve used for decades in West Virginia hasn’t always served us very well.

Several years ago, Chairman Manchin heroically spent many, many months in open committee meetings trying to craft a strong bill to regulate the Marcellus Shale natural gas drilling boom in West Virginia, only to see that product severely weakened by Gov. Tomblin, whose office had previously refused to release its correspondence with industry lobbyists about how the Marcellus boom should be regulated.

That’s why one part of the new version of SB 373 that is most puzzling is 22-31-7, which is somewhat ironically titled, “Public Access to Information.” This is part of a section of the bill that requires the state to put together a list of potential contaminants located in the “zone of critical concern” near public drinking water intakes It starts out well enough:

… The public shall have access to all documents and information submitted to the agency … “

But, it goes on to say that if any such information:

“… Is requested to be kept confidential and good cause is found to grant the request, for reasons of security or other legitimate public interest concern, the protected information shall be redacted from public view and kept confidential, and it shall not be subject to public release in response to a Freedom of Information Act request … “

Not for nothing, but the state FOIA already contains at least 9 exemptions that were added after the September 11, 2001, terrorist attacks that are perfectly adequate to protect any secret squirrel information that needs to be kept confidential to protect our water supply from some evil-doers. But the bill as written creates a completely different test — “good cause … for reasons of security or other legitimate public interest concern” — than the difficult test for concealing any public records under our existing state FOIA, which mandates “the fullest possible disclosure.”

The way this version of SB 373 is written, Freedom Industries might very well have been able to conceal from public view any information about what it was storing at the Elk River site prior to last month’s chemical spill. It’s hard to believe that’s what Chairman Manchin and his staff intended.

WVDEP: More problems found at Patriot site

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Gazette photo by Kenny Kemp......7.95x5.2.....Slurry spill at Winifrede Hollow.

Photo by Kenny Kemp / Emergency officials and environmental inspectors said roughly six miles of Fields Creek was blackened by a coal slurry spill in eastern Kanawha County last week.

Here’s today’s news from the West Virginia Department of Environmental Protection:

The West Virginia Department of Environmental Protection has issued another Notice of Violation (NOV) to Patriot Coal’s Kanawha Eagle Prep Plant.

The NOV was issued by the WVDEP Division of Mining and Reclamation after a rapid rise in stream levels in Fields Creek Wednesday stirred up silt settled in the creek bed and resulted in discolored water entering the Kanawha River. The rise in stream levels was attributed to rapid snow melt.

The NOV requires the company to cease all activity that may contribute to conditions not allowable in state waters. The company must provide a durable surface on all roadways and evaluate all sediment control structures for retention time. The company must also submit a work plan detailing all cleanup efforts and management of high-flow situations. In addition, the work plan is to include scheduled daily monitoring of Fields Creek.

Patriot Coal’s ability to respond to the high-flow situation Wednesday was hindered by the company’s concerns for the safety of its workers in the swift-water conditions.

Earlier this week, the WVDEP modified an Imminent Harm Cessation Order, issued to Kanawha Eagle following last week’s slurry spill, to a NOV.



Freedom to spill: Coal must take bad with good

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Gazette photo by Chip Ellis

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

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

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

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

On Sunday night he did the same.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Study pinpoints pollution from mountaintop removal

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The big news here in West Virginia is out of Mingo County, where two local officials — including Circuit Judge Michael Thornsbury have been indicted (see here and here). We’ve talked about Thornsbury before on Coal Tattoo here, here and here. And we’ve also got another story on the Gazette website with more details on an interesting coal-bank-workers comp scheme that’s prompted multiple federal criminal charges.

Meanwhile, there’s a new study out from the folks at Duke University that sheds some new light on the pollution from mountaintop removal coal-mining.  According to the press release:

Three elements commonly found at elevated levels in an Appalachian river polluted by runoff from mountaintop coal mining have distinctive chemistries that can be traced back to their source, according to a Duke University-led study.

The distinctive chemistries of sulfur, carbon and strontium provide scientists with new, more accurate ways to track pollution from mountaintop mining sites and to distinguish it from contamination from other sources.

“Essentially, we found that these elements have unique isotopic fingerprints, meaning we can use them as diagnostic tools to quantify mountaintop mining’s relative contribution to contamination in a watershed,” said Avner Vengosh, professor of geochemistry and water quality at Duke’s Nicholas School of the Environment.

The newly identified tracers will be especially useful in watersheds with more than one source of potential contamination, he said. “Because they allow us to distinguish if contaminants are coming from natural sources, fracking and shale gas development, coal mining, coal ash disposal, or other causes.”

Can we debate the King Coal Highway honestly?

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This morning’s story from West Virginia Public Broadcasting about the massive mountaintop removal mining project proposed as part of the King Coal Highway started off well enough:

Sen. Ron Stollings was admitting that Southern West Virginia is facing “a depleting economy with coal”  and Steve Kominar, executive director of the Mingo County Redevelopment Authority, said what should be obvious — but that few of our state’s leaders like to admit:

We’ve got to have an economy for West Virginia for life after coal. Coal is quickly depleting and if we don’t do that, than what have we left our children and grandchildren.

It’s good to hear from folks at the Mingo County Redevelopment Authority, one of the few local groups that has really tried — especially under the leadership of the late Mike Whitt — to focus on these issues, and to find ways to bring new jobs and a brighter future to our West Virginia coalfields. And the Buffalo Mountain Surface Mine permit that CONSOL Energy proposes as part of the highway project is certainly a timely topic, as the comment period on the latest environmental study is coming to a close.

Unfortunately, this story goes downhill pretty quickly:

Kominar said Consol has been fighting for the permit since 2007 and believes the EPA is doing everything it can to stop or stall the permit’s approval. Both the Army Corps of Engineers and the Federal Highways Administration have signed off on the environmental impact study that details how Consol will maintain run off and address water quality issues, but Kominar said that hasn’t been enough.

“… They say it’s an environmental concern, but their argument holds no credence. There’s no scientific evidence to back up what the EPA is saying except emotional testimony by people to say, well, it’s going to cause this or it’s going to cause that,”  he replied.

“We live here, we breathe this air, we drink this water. We obviously don’t want to destroy ourselves. There’s no evidence to prove that what some of the antis are saying is actually valid,” Kominar said.

“We’ve done hydrological surveys on water systems prior to mining, during mining and after mining, and without fail we found every time that the water quality during mining was a lot better than prior to mining, and was obviously a lot better after mining

Let’s be clear on what public broadcasting reported — without presenting anyone questioning it — There’s no evidence to prove that the kind of mining CONSOL is proposing here damages the environment?

No evidence? It’s hard to know where to start here. But there certainly is a lot of evidence in the peer-reviewed literature that shows large-scale surface mining is linked to pervasive and irreversible impacts on water quality.

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This just in from the Sierra Club and other groups:

Today, a coalition of citizen and environmental groups took action to stop pollution coming from 9 different coal mining facilities owned by subsidiaries of Alpha Natural Resources. The mines, located in Logan, McDowell, Boone, and Kanawha counties, all violate key protections in the Clean Water Act and Surface Mining laws regarding selenium pollution from mountaintop removal or traditional mines and associated facilities. The groups bringing the action, Ohio Valley Environmental Coalition, West Virginia Highlands Conservancy and Sierra Club, seek to ensure Alpha installs the appropriate protections at these sites, which would improve the quality of West Virginia waterways for the residents and natural life that depend on them.

The release continues:

Alpha Natural Resources is the nation’s third largest coal producer and, after its recent acquisition of Massey Energy, is now the largest mountaintop removal mining company in the country, responsible for about 25% of coal production from mountaintop removal mines. In December 2011, the groups reached a settlement with Alpha regarding selenium pollution at three facilities. That settlement required Alpha to treat the selenium pollution at an estimated construction cost of over $50 million, and to pay additional penalties of $4.5 million. Since entering into that settlement, the groups discovered selenium pollution at the facilities named in today’s legal challenge.

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

The evidence continues to mount that the long term legacy of streams polluted by harmful levels of selenium from these and other mines has become as costly and devastating as the thousands of miles of streams already destroyed by acid mine drainage. Permits must not be granted where mining will only further damage the health of our water and those residents now and in the future who depend on that water.

Breaking: Tentative deal in Prenter slurry case

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Word just in from Boone County that a tentative agreement has been reached between residents of the Prenter-Seth community and Alpha Natural Resources, potentially resolving the major coal-slurry pollution case that was set to go to trial.

A court official confirms that the deal was reached earlier today in a court-ordered settlement meeting. No details have yet been made public, but further proceedings have been put on hold.

Jury selection had been ready to start today, with opening statements scheduled for next Monday. More background on the case available here, here and here.

Water lawsuit update: Blankenship and coal slurry

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As jury selection gets underway this week in the big coal slurry case brought against Massey Energy by the residents of the Seth and Prenter communities, we revisited an early slurry case with this story in Sunday’s Gazette-Mail, reporting:

In the weeks before last year’s settlement of a major water pollution case, lawyers for Mingo County residents were saying they’d unearthed records indicating Massey Energy tried to cover up the extent of its underground pumping of coal-slurry waste.

Among the more interesting tidbits:

Lawyers for the residents also filed court records they argued showed then-Massey CEO Don Blankenship personally pushed for the slurry injection to save $55,000 in waste-impoundment construction costs.

Erkan Esmer, a one-time engineering consultant for Massey at its Rawl Sales & Processing Co. operations, testified about Blankenship’s slurry injection decision in a legal deposition in the case, brought by hundreds of residents who allege slurry polluted their drinking water.

“Well, I think Don thought that $55,000 was too much to spend and complained about that,” Esmer said in a sworn statement taken during the litigation.

The Coal River runs by the Alpha Natural Resources Goals Coal processing plant, near Marsh Fork Elementary School, in Raleigh County. Photo by Vivian Stockman

Here’s the announcement this morning from the group American Rivers:

American Rivers named the Coal River among America’s Most Endangered Rivers today, shining a national spotlight on the threat mountaintop removal mining poses to clean water and public health. The announcement of the Coal is particularly timely, with the nation commemorating the 40th anniversary of the Clean Water Act this year, and Congress considering drastic rollbacks to clean water safeguards.

The Coal River has made this list before, and here’s what American Rivers has to say this year:

The extremely destructive practices of mountaintop removal mining and valley fills that bury and poison headwater streams pose a dire threat to the health of the Coal River and surrounding communities. Some of the largest strip mines in Appalachia exist in the Coal River basin. Approximately 20 percent of the river’s watershed is permitted for coal mining, and one-third of that area has already been mined. Over 100 miles of headwater streams have already been buried in the watershed.

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

In the last couple of years, much positive attention has been given and energy expended to entice local involvement and enjoyment of the lower reaches of the Coal River in Kanawha County. And yet the smaller headwater streams miles upriver continue to be buried and polluted by giant coal mining mountaintop removal operations. It is here in these headwaters where the life and health of the river begins. And it is here where the connections between the health of the environment and the health of the people are most apparent. Protecting these small streams is essential for the long term health of both.

This just in from the Herald-Leader in Lexington, Ky.:

In a unanimous rebuff of the Beshear administration’s environmental cabinet, the Kentucky Supreme Court has upheld citizens’ rights to be heard in clean water enforcement actions.

“Federal law encourages the states to permit interested citizens to intervene and be heard in state court enforcement proceedings.” Justice Lisabeth Hughes Abramson wrote for the seven justices.

The unanimous opinion also cites “Congress’s express declaration that public participation in efforts to control water pollution is a priority of the Clean Water Act.”

Yet, the Beshear administration, which is responsible for enforcing the Clean Water Act in Kentucky, had insisted it would be “an unwarranted burden” to allow interested citizens groups and individuals to object to a settlement between the Cabinet for Energy and Environment and two of the state’s largest coal companies.

The administration tried to exclude the citizens groups even though they uncovered the massive violations and filed a notice to sue, which, under federal law, triggered the state investigation that led to the proposed settlement.

You can read the court opinion here.

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