Coal Tattoo

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

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

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

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

WVDEP releases Prenter water study

Here’s the release just issued by the West Virginia Department of Environmental Protection:

A year-long study commissioned by the West Virginia Department of Environmental Protection on water supplies in the Prenter/Sand Lick area of Boone County did not reveal evidence of widespread mining-induced impacts to groundwater quality in the study area.

The study, which began in December 2010, was conducted by Triad Engineering, of Scott Depot, and was ordered by the DEP to evaluate allegations of negative impacts to the quality of groundwater being used as a drinking source by residents in the study area. Triad was asked to determine what human activity, including coal mining and mining-related activities, might have negatively affected drinking water sources.

The study area included all residences along Hopkins Fork of the Big Coal River and tributaries of Hopkins Fork from Seth to Prenter. A large portion of the study area, from Seth, upstream to Nelson, now has public water.

Domestic wells sampled for water quality were well distributed across the entire watershed, and therefore provided a representative characterization of groundwater quality in the study area.

“This was a thorough, comprehensive study,” DEP Cabinet Secretary Randy Huffman said. “I hope the results help put the people in the Prenter community at ease because we can point to laboratory test results from the wells that say the water quality is within Primary Drinking Water Standards.”

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Breaking: Patriot agrees to huge selenium cleanup

Photo by Vivian Stockman, Ohio Valley Environmental Coalition

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

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

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

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

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

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

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

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

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

Dianne Bady with the Ohio Valley Environmental Coalition said:

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

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

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

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

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

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

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

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

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

After filing my own blog post and print story on yesterday’s press conference on the new reports concerning coal-slurry contamination of the Prenter community’s water supplies, a couple folks pointed out to me the story that Taylor Kuykendall did for The State Journal’s website. In particular, they told me to check out the quotes from DEP Secretary Randy Huffman.

I did, and here’s what was in the story:

However, not everyone agrees with the idea that coal slurry injection has caused water problems at Prenter.

“We studied specifically the possibility the slurry injection had migrated into the water, and there’s not a geologic connection between where it was store and where their problem is,” Department of Environmental Protection Director Randy Huffman told the Associated Press. “The injection site in Prenter is not the source of their problems.”

It looks like the quotes were lifted from an AP story that is nearly three years old.

Now, some readers may recall — I’m sure Prenter-area residents will remember — that their community was not included in the coal-slurry injection study that WVDEP did a few years back. Agency officials believed the slurry injection occurred too long ago and too far from residential drinking wells to be a good fit for their Legislature-ordered review.

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

I’m just back from the Capitol here in Charleston, where folks from the Sludge Safety Project held a press conference to publicize the public release of two expert reports filed in the case filed by several hundred residents of the community of Prenter over their allegation that coal slurry has poisoned their drinking water.

The two reports are available here and here, and the bottom line, as described by the organization is:

Conclusion: coal slurry leaking out of the underground impoundments in the old coal mines and released from the plant or various discharge points within the NPDES permits in Laurel Lick and Sand Lick leach metals while percolating through the aquifer consisting of the coal waste valley fill, zone of shallow weathered and fractured bedrock and alluvium. The metals are thus transported downstream to the location of the residential water wells.

Speakers at the press conference included Laura Merner, Ph.D. candidate in hydrology and SSP volunteer, the Rev. Jim Lewis, and Prenter resident Jennifer Hall-Massey, whose story of watching her neighbors get sick and die was told so well in The Last Mountain film.

Interestingly, Rev. Lewis mentioned that they would have had a bigger crowd of West Virginia residents at the press conference, but that folks from the Rawl area, who recently settled their coal-slurry contamination lawsuit, are concerned about still being covered by a gag order issued by a panel of judges overseeing that case. If the gag order isn’t lifted, Rawl resident might not be able to travel to Charleston this legislative session to tell lawmakers about their experience and lobby for tougher regulation of coal-slurry handling and disposal.

CONSOL agrees to stream cleanup

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

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

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

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

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

I’ve posted a copy of the settlement here.

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

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

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

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

The ruling explained:

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

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

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

Part II: Should Alpha/Massey slurry deal be secret?

Circuit Court Judges from left: Judge Jay Hoke of Lincoln County, Judge James Mazzone of Ohio County, and Judge John Hutchison of Raleigh County listen to pretrial motions in a coal slurry pollution lawsuit against Massey Energy in Ohio County Circuit Court on Friday, July 22, 2011, in Wheeling, W.Va. (AP Photo/The Intelligencer, Scott McCloskey)

My buddy Dr. Paul Nyden and other members of the media got turned away at the door the week before last when a panel of West Virginia judges held a hearing on the settlement of the big Rawl Sales coal-slurry pollution case.

Jennifer Bundy, a court spokeswoman, told Paul:

It is a confidential settlement. And the hearings are confidential.

Now, I’m not trying to pick on Jennifer here. She’s just the messenger. But real questions continue to exist about the way the three-judge panel is handling the public access — or lack thereof — to information about this case.

We’ve written about this before here, and the judges still haven’t done much — anything, really — to explain themselves. And it’s not at all clear that they are following West Virginia’s Constitution and the case law interpreting it.

As best I can tell, there are five orders posted online by the panel. They’re here, here, here, here, and here.

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Details of Arch Coal selenium deal outlined

We reported about three months ago that a settlement was in the works in the environmental community’s lawsuit against Arch Coal Inc. over continued and repeated selenium violations at some of its operations in Southern West Virginia.

Last Thursday, lawyers for the Ohio Valley Environmental Coalition and other groups filed this proposed consent decree with U.S. District Judge Robert C. Chambers in Huntington. And today, the environmental group plaintiffs issued a news release announcing:

A coalition of conservation and environmental groups recently completed a legal settlement with Arch Coal and its subsidiaries which will require the coal mining company to clean up toxic run off from six coal mines in West Virginia. The original suit was filed against Arch in June of 2010 for violating limits on selenium at those locations. The suit was brought by the West Virginia Chapter of the Sierra Club, West Virginia Highlands Conservancy, Ohio Valley Environmental Coalition, and Coal River Mountain Watch.

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Pennsylvania sues CONSOL over Dunkard Creek

This just in from the Pennsylvania  Fish and Boat Commission:

The Pennsylvania Fish and Boat Commission (PFBC) today sued Consol Energy for civil damages resulting from a devastating 2009 pollution incident in which discharges from a Consol coal mine entered Dunkard Creek, contributing to a massive fish kill spanning nearly 30 miles of stream in West Virginia and Pennsylvania. The lawsuit seeks compensatory damages for the lost aquatic life and lost fishing opportunities for Pennsylvania anglers and punitive damages to deter future pollution.

My old buddy Don Hopey at the Post-Gazette has a story on this, and there’s also a report on the New York Times Green blog.

Readers may recall that CONSOL had already agreed back in March to pay $5.5 million in civil penalties over the Dunkard Creek disaster, in a deal that also required construction of a new water pollution treatment facility for the mine company’s operations in that area.

Keep in mind, as CONSOL pointed out at the time:

CONSOL is also resolving alleged natural resource damages claims in a cash settlement of $500,000 with the West Virginia Department of Natural Resources. This agreement will not only avoid pointless litigation, but will also provide resources to the state to enable them to further address stream degradation issues such as poor stream habitat and poorly managed sewage discharges along the creek.

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Coal enforcement trial begins in Kentucky

It’s been a while since we revisited the litigation brought by environmental groups over what they say are widespread water quality violations and lax enforcement in Kentucky’s coalfields.

But trial began today in Frankfort, Ky., and my friend Jim Bruggers had this preview in the Courier-Journal:

The environmental groups, supported by Robert Kennedy Jr., and his Riverkeeper organization, last year alerted state authorities to numerous clean-water violations, prompting the energy cabinet to sue and fine the companies a combined $760,000. But the groups said the penalties were too lenient for the thousands of violations they had alleged, including repeatedly copying and pasting the same water quality discharge data at coal mines.

Appalachian Voices has more details of the litigation on its website here.

And if you’re on Twitter, check out the hashtag “#coalcase”  or follow Jim, because he’s live-tweeting the trial.


Should the Alpha/Massey slurry deal be secret?

Circuit Court Judges from left: Judge Jay Hoke of Lincoln County, Judge James Mazzone of Ohio County, and Judge John Hutchison of Raleigh County listen to pretrial motions in a coal slurry pollution lawsuit against Massey Energy in Ohio County Circuit Court on Friday, July 22, 2011, in Wheeling, W.Va. (AP Photo/The Intelligencer, Scott McCloskey)

Lawyers for Massey Energy and coalfield residents were plugging right along, arguing over how The Associated Press found out that they had settled a case over Massey’s coal slurry pollution for $35 million … Then the walls of the ceremonial courtroom in the old Kanawha County Courthouse shook.

Was God telling us that Massey lawyers should stop their campaign to figure out AP writer Vicki Smith’s sources? Or was it just the rumblings from the Mineral, Va.-based earthquake hitting West Virginia?

Whichever it was, the courtroom security folks cleared us all out, and eventually Judges Jay Hoke, James Mazzone and John Hutchison finished up their hearing on the steps of the building. The judges agreed to Massey’s request that the court privately inspect a telephone call script and a letter the plaintiffs’ lawyers used to inform their more than 850 individual clients of the settlement terms.

It’s not clear exactly what the judges are looking for, or what they’ll do if they find it. Are they trying to figure out exactly who leaked the settlement letter to the AP? What if they figure that out? Will this person be punished somehow? I asked Judge Mazzone these questions, and he said:

I’m not exactly sure what the scope of our examination will be.

But what I really can’t figure out is why the judges are going to all this trouble without first making even the most basic attempt to answer the more important threshold question: Should this settlement be secret in the first place?

This question became even more confusing when, at yesterday’s hearing, the panel judges indicated that had not even seen the settlement agreement yet. If they haven’t seen it, how could there be an actual order of the court sealing it from the public?

As we all stood outside the courthouse yesterday afternoon, I tried to get an answer on these issues from Judge Mazzone. He at first declined to comment, but then called Judge Hutchison over to help him try to answer my query. Judge Hutchison explained that his view is that the two parties to the lawsuit — Massey and the residents — agreed to a secret settlement, and that’s the end of it, unless someone files suit to challenge that confidentiality:

It’s up to a third party to ask for such things to be unsealed.

I asked the judge, perhaps foolishly beginning my question with the phrase, “with all due respect,” if he could point me to some case law in West Virginia that backed up that conclusion. The judge snapped, “Don’t ‘with all due respect me'” and stomped off, refusing to answer any more questions.

So is Judge Hutchison right? Are judges just supposed to accept whatever secrecy the parties to a civil suit drop into the court’s lap?

Well, the Gazette has had some recent experience litigating this issue in a case involving Massey, the Upper Big Branch Mine Disaster and the Alpha Natural Resources merger. We won the case, unsealing hundreds of pages of court filings. You can read our lawyers’ brief here and Kanawha Circuit Judge Charles King’s ruling here.

You would think the panel judges in this Massey slurry case would understand the law in this area, since one of the more important cases involves a Supreme Court review of actions by Judge Hoke to seal court records and close his courtroom.

In that case, the Supreme Court made two important findings:

— The open courts provision of Article III, Section 17 of the Constitution of West Virginia guarantees a qualified constitutional right on the part of the public to attend all civil court proceedings; and

— Unless a statute provides for confidentiality, court records shall be open to public inspection.

The court went on to say that, “the qualified public right of access to civil court proceedings guaranteed by Article III, Section 17 of the Constitution of West Virginia is not absolute and is subject to reasonable limitations imposed in the interest of the fair administration of justice or other compelling public policies.” But the justices also made it clear that circuit judges aren’t supposed to just approve secrecy requests by the parties without examining whether confidentiality is the best move in a particular case:

In performing this analysis, the trial court first must make a careful inquiry and afford all interested parties an opportunity to be heard. The trial court must also consider alternatives to closure. Where the trial court closes proceedings or seals records and documents, it must make specific findings of fact which are detailed enough to allow appellate review to determine whether the proceedings or records are required to be open to the public by virtue of the constitutional presumption of access.

Other courts have found that judges should not “abdicate their responsibility” to protect the public’s right to court records and only allow records to be sealed in very limited circumstances.

And most recently, a federal judge in Virginia refused to allow the parties to a civil litigation settlement to seal the terms of their settlement, even though no third party had intervened to argue for openness. As the Reporters Committee for Freedom of the Press reported:

Despite the urging of both parties that the secrecy of the deal was a key aspect of the agreement, the court denied the request to seal it and ordered the parties to indicate whether they wished to continue with the settlement — knowing its terms would be available to the public — or proceed to trial.

“Few principles have as long a pedigree and are as well-settled as the public’s right of access to court proceedings and judicial documents,” Ellis said. “With strong roots in the common law and the First Amendment, this principle is central to the legitimacy and independence of the judiciary. . . . While this right is not absolute, courts have uniformly emphasized that sealing should be the relatively rare exception, not the common practice.”

So far, we haven’t heard much from either side about why this settlement’s details should be kept secret. All that Massey lawyer Dan Stickler told the court yesterday was that AP’s publication of the settlement amount could be problematic for his clients in other similar cases that are pending:

We have other litigation where this kind of information could have a very negative impact on the proceedings.

And, even though AP already knows the settlement details — and has published them for all the world to see — Judge Hutchison warned the plaintiffs lawyers to caution their clients about further leaks:

Everything has got to remain confidential.

AP: Slurry deal to cost Alpha/Massey $40 million

Shayne Fields, 19, left, and Kayla Farley, 18, both of Williamson, W.Va., drop off bottles filled with well water from their home they say was contaminated with coal slurry by Massey Energy and subsidiary Rawl Sales & Processing, prior to court hearing Monday, Nov. 15, 2010, in Charleston, W.Va. (AP Photo/Jeff Gentner)

Here’s the latest from Vicki Smith at The Associated Press:

Massey Energy Co. has offered $35 million to settle a lawsuit with hundreds of southern West Virginia residents who say the company poisoned their drinking water with coal slurry.

The settlement proposed last month is confidential, but The Associated Press obtained a letter sent to the plaintiffs that lays out some details.

It says the $35 million is in addition to $5 million that Massey and a subsidiary, Rawl Sales & Processing, had previously agreed to put into a medical monitoring fund.

Massey is now owned by Virginia-based Alpha Natural Resources, which didn’t immediately comment Monday.

The letter doesn’t say how much the lawyers are seeking. The attorneys refused comment, citing a court-imposed gag order.

A hearing on the settlement and its distribution is set for Sept. 29 in Charleston.

I’ve just received word that three citizen groups have reached agreement on a court settlement that, if finalized, will force the West Virginia Department of Environmental Protection to greatly improve the treatment of long-term water pollution runoff at dozens of old coal-mine sites across our state.

Earlier today, lawyers for the West Virginia Highlands  Conservancy, the Rivers Coalition and the Sierra Club filed the proposed settlement in federal court here in Charleston. A similar proposed settlement is expected to be filed in U.S. District Court for the Northern District of West Virginia.

The deal concerns ongoing litigation the groups filed against WVDEP over the agency’s long-standing practice of not treating pollution from sites covered by the state’s Special Reclamation Fund so that the discharges would not cause water quality violations.

Keep in mind that these sites are not part of the federal Abandoned Mine Lands program, and are instead operations that the state took over — after the operators went belly up or walked away — since passage of the 1977 federal strip-mining law.

Over the years, the special reclamation program has never had enough money. Thousands of acres of abandoned mines sat unreclaimed. Hundreds of polluted streams went untreated.  Historically, the fund had been short of money because coal operators had not posted reclamation bonds sufficient to cover the true cost of mine cleanups at sites they abandon. A state tax on coal production was never set high enough to cover the difference.

Citizen groups have had to go to court just to get WVDEP to actually treat water pollution at these abandoned sites, and their latest legal effort was aimed at forcing agency officials to put in place treatment that would actually comply with permit limits and water quality standards.

Readers may recall that federal judges in two different districts — Judge John T. Copenhaver here in Charleston and Judge Irene M. Keeley in the nothern district — have ruled against WVDEP on this issue. WVDEP’s outside lawyers also lost an appeal of the matter to the 4th U.S. Circuit Court of Appeals.

So now, WVDEP officials have agreed to settle the case.

Under the deal, WVDEP will by mid-August have to provide the citizens with a draft inventory of special reclamation sites with water treatment. A final list will have to be provided by mid-October.

Then, over the next four years, the WVDEP will have to come up with permits — containing enforceable water pollution limits, aimed at meeting water quality standards — for at least 171 special reclamation sites across the state.

Continue reading…

Massey slurry case settled

Russell Prince holds photographs on Monday Nov. 15, 2010 in Charleston, W.Va., of his 4-year-old daughter, Chasety, who died in 1996 of a kidney tumor he believes was caused by well water contaminated with coal slurry. (AP Photo/Vicki Smith)

This just in from Vicki Smith at The Associated Press:

Massey Energy and a subsidiary have settled a 7-year-old lawsuit with hundreds of southern West Virginia residents who say the companies’ coal slurry disposal practices poisoned their drinking water.

Judge Alan Moats confirmed the deal was struck early Wednesday morning after a marathon mediation attempt that began Monday. The terms are confidential.

Moats and Judge Derek Swope had been trying to settle the case as three other judges prepared for a long trial that was set to start Aug. 1.

Moats praised both sides for working hard to find common ground.

Some 700 people sued Massey and Rawl Sales & Processing over water supplies they say were ruined by 1.4 billion gallons of slurry pumped into worked-out underground mines.

All parties remain under a gag order and didn’t immediately comment.

Massey slurry case gearing up for trial

Jimmy Murphy of Sprigg, W.Va., holds a jar filled with well water from his home he says was contaminated with coal slurry by Massey Energy and subsidiary Rawl Sales & Processing, prior to court hearing Monday, Nov. 15, 2010, in Charleston, W.Va. (AP Photo/Jeff Gentner)

Vicki Smith over at The Associated Press has been up in Wheeling the last few days covering pre-trial hearings in the big coal slurry pollution case against Massey Energy by the residents of about 700 Mingo County residents.

Earlier in the week, Vicki reported on the latest efforts by judges in the case to seek some settlement through mediation:

For the third time, two judges will try to settle a long-running lawsuit that claims Massey Energy Co. and one of its subsidiaries poisoned hundreds of drinking water wells in southern West Virginia with coal slurry.

The state’s Mass Litigation Panel is handling the case against Massey and subsidiary Rawl Sales & Processing, both of which are now owned by Virginia-based Alpha Natural Resources.

Judges Derek Swope and Alan Moats have ordered lead attorneys for both sides to meet July 25-26 in Charleston to discuss a possible deal and avoid the series of trials set to begin Aug. 1 in Wheeling.

And yesterday, she reported on the judges’ refusal to dismiss the case:

A three-judge panel refused Thursday to dismiss a lawsuit accusing Massey Energy of poisoning hundreds of southern West Virginia wells with coal slurry, but it denied a request to sanction the coal operator for taking years to produce maps of its underground injection sites and other evidence.

After a contentious daylong hearing in Wheeling, the judges began clearing the way for the trial, set to begin Aug. 1. They also laid out rules for that trial, ordering participants to stop talking to the media, denying video coverage of the proceedings and warning against signs, buttons, T-shirts and anything else that attempts to turn the Ohio County Circuit Court into a protest venue.

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UPDATED: The legislation passed this evening on a vote of 239-184.

When last we left my good friend Rep. Nick J. Rahall, his staff was dodging questions about the growing body of science that shows serious environmental damage and public health impacts in his district from mountaintop removal coal mining.

Since then, Rahall has become the co-sponsor of legislation called the Clean Water Cooperative Federalism Act of 2011, H.R. 2018. The title says this is what the bill would do:

To amend the Federal Water Pollution Control Act to preserve the authority of each State to make determinations relating to the State’s water quality standards, and for other purposes.

House members are set to vote on the legislation today, and the email message I just got from the office of Rep. Shelley Moore Capito, R-W.Va., tells me that the U.S. Chamber of Commerce supports the bill, saying:

The Clean Water Act grants states the primary responsibility for protecting water quality. However, recent actions by the EPA upset and supplant this partnership with arbitrary federal power that is being exercised even over states with effective delegated regulatory programs. Individuals and firms that meet the requirements of, and obtain permits from, state regulators ought not to be left exposed to the enforcement whim and caprice of the federal government.

Make no mistake, this legislation is very, very unusual. The bipartisan Congressional Research Service observed in a report issued yesterday:

Beyond the recent specific examples, it noteworthy that the federal-state partnership for implementing environmental laws has not always been harmonious. There is ample history of friction between the desire of states to implement national programs flexibly according to their own priorities, versus EPA’s responsibility to oversee national programs and account for federal funds provided for states, as well as compliance of state programs with the goals and objectives of federal laws. While Congress has regularly registered concerns with regulatory initiatives of EPA and other federal agencies and sometimes considers legislative proposals to alter or de-fund an agency’s ability to implement a particular regulatory program, it is highly unusual for Congress to advance legislation that would broadly alter the federal-state partnership in order to address dissatisfaction with specific actions by EPA or another agency.

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WVDEP: ‘Golden algae’ back?

This just in from the West Virginia Department of Environmental Protection and the Pennsylvania DEP:

The Pennsylvania and West Virginia Departments of Environmental Protection have begun sampling and monitoring ponds and streams in the Dunkard Creek area after sampling found golden algae in a privately owned pond in Pennsylvania.

Golden algae was determined to be the cause of a fish kill in Dunkard Creek in the fall of 2009.

The pond is located just north of the West Virginia and Pennsylvania state line, downstream from the town of Blacksville. The discovery was made by staff of CONSOL Energy during routine monitoring and sampling.

CONSOL Energy reported its findings June 9 to the DEP in both states, which immediately sent staff to the area to collect samples from the pond and various sites along Dunkard Creek. The samples were sent to various experts with extensive experience studying algae. The departments are awaiting the results. On Tuesday, June 14, WV DEP staff flew over the area to see if they could spot any other water bodies with discoloration and target them for sampling.

“We are still very early in this process, and there is no evidence that the algae is having a toxic effect in the pond at this time,” said Scott Mandirola, director of Water and Waste Management for WV DEP. “We are asking residents to be aware of this discovery and look for discoloration in their private ponds and area streams.”

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I’ve just learned that the Sierra Club and Massey Energy have reached a tentative settlement of the water pollution lawsuit the group filed against Massey Energy about a year ago.

A proposed consent decree, which I’ve posted here, was filed yesterday with U.S. District Judge John T. Copenhaver here in Charleston.

The deal sets up compliance requirements and a schedule of stipulated penalties for future water permit limit violations. It requires Massey to pay the federal government a fine of $40,000.

And, it requires Massey to pay $400,000 to the West Virginia Land Trust, to help with an environmental law clinic at the West Virginia University College of Law, which is working to protect riparian area protection projects. It’s similar to the settlement made in earlier water pollution case against CONSOL Energy, discussed here.