Coal Tattoo

We’ve written before about the efforts of the Ansted Historic Preservation Council and the Sierra Club to clean up water pollution problems at CONSOL Energy subsidiary Powellton Coal Co.’s Bridge Fork strip mine site in Fayette County, W.Va. (See previous posts here, here and here).

Now, there is a proposed settlement that was filed yesterday in U.S. District Court in Charleston that promises some interesting changes — not only at the mine site, but for other serious water pollution challenges in that area.

I’ve posted a copy of the proposed consent decree (it still needs approval from U.S. District Judge John T. Copenhaver and the Department of Justice) here.

Under the deal, Powellton Coal has agreed to pay nearly $135,000 in civil penalties for past water pollution violations. And, the company has come up with an “action plan” to end aluminum water pollution violations at the operation.

But the fascinating thing here is that Powellton has also agreed to spend $1.2 million on a “supplemental environmental project” that will create a “Land Use and Sustainable Development Clinic” at the West Virginia University College of Law.

The clinic will allow WVU law students and faculty to provide the community with legal resources directed to the following goals:

— To protect land essential to watershed protection through conservation/riparian easements or other land and water protection strategies.

— To draft land use plans and ordinances, where needed and possible to protect ground and surface water quality and quantity.

— To solve residential wastewater issues, such as “straight piping” (pipes that carry human waste from residence or business without treatment directly to a stream) to protect both ground and surface water.

The College of Law is going to provide another $943,000 for the clinic, making its total four-year budget $2.6 million.  Also, Powellton will pay stipulated penalty amounts for any future violations, and those funds will also go toward the law clinic.

WVDEP issues state’s own mining permit guidance

The West Virginia Department of Environmental Protection just issued its long-promised permitting guidance for implementing the “narrative water quality standards” as it applies to surface coal-mining operations (See previous posts on this subject here, here and here).

In a news release just issued, WVDEP described the guidance this way:

The guidance document is a tool to be used by the DEP to develop National Pollutant Discharge Elimination System (NPDES) permits for the coal mining industry. The goals of the document are to advance water quality and assure that surface mining operations are conducted in ways that protect the narrative water quality standards.

The guidance document addresses matters such as reasonable potential analyses for aquatic impacts downstream and extensive monitoring before and during mining to ensure that aquatic life use is being adequately protected.

WVDEP Secretary Randy Huffman said:

We trust that EPA will give deference to West Virginia’s guidance document, as it was created to satisfy requirements outlined in the Clean Water Act.

This document will result in changes that are markedly different from how mining has been conducted for the last 30 years.

You can read the guidance here and a “justification” document here.

The AP’s Vicki Smith has the jump this morning on the results of the final portion of the legislatively mandated study of coal-slurry injection practices in West Virginia.

I’ve posted Vicki’s story on our Mining the Mountains site, and you can read the final report from West Virginia University researchers here.

Here’s the bottom line:

The process for development of analyses of what is known about water contamination from coal slurry injection and known, probable, or potential effects upon human health involves a comparison of the known toxicity of coal slurry components “downstream” (either riverine or underground) water contamination, compared to known or suspected human toxicities from the peer-reviewed literature. There are innumerable considerations in this process, and no effort can be complete. For example, the current state of science measures inorganic compounds and elements better than organics, and provides a much richer data base on their health consequences. This is one of many immutable “data gaps” that we identified in this investigation. The absence of sufficient data implies a need to learn; it does not necessarily imply the absence or presence of a problem or a means to do assessments in the absence of data.

Vicki put it this way in her story:

Legislators have waited 31/2 years and spent more than $220,000 to learn whether coal slurry pumped into abandoned underground mines is dangerous to people who live nearby. The answer? No one knows.

A new 418-page report by researchers at West Virginia University concludes that while the wastewater from cleaning coal could potentially affect water supplies, wells and public health, there’s no proof it has or will.

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New report: Tougher longwall rules needed in Pa.

The idea that mountaintop removal can be stopped in favor of underground mining is something that gets some traction now and again, especially by some folks in the environmental community.

But it’s worth remembering that the most efficient types of underground mining also take their toll on the environment (not to mention worker safety).  One of the best examinations of this issue was done a while back by the good folks at the Center for Public Integrity, who published a detailed expose called The Hidden Costs of Clean Coal.

And now, we have a new report just issued today by the Pennsylvania Chapter of the Sierra Club and the Citizens Coal Council, concluding that “Protection of Water Resources from Longwall Coal Mining is Needed in Southwestern Pennsylvania.” According to a press release, the report:

… Documents an internal administrative quagmire of illogical permit monitoring, baseless decisions, and lax oversight of coal operators by the Pennsylvania Department of Environmental Protection (PADEP).

Key among the report’s findings is that despite improved data collection requirements and strong state constitutional and regulatory safeguards, the PADEP has failed to adequately evaluate and protect against threats to valuable Pennsylvania streams and watersheds adversely affected by the longwall “full extraction” method of coal mining. As a result, exceptional value and high quality streams are being lost to longwall mining.

Stephen P. Kunz, co-author with James A. Schmid of the consulting firm Schmid & Company, said:

Water resource protection is not happening because the regulations are not being applied and the laws are not being enforced.

A new report out this week from the U.S. Environmental Protection Agency recommends major improvements in the way state regulators across Appalachia review water-pollution permit applications from the coal industry.

The report, available here, documents EPA’s findings in a review of Appalachian state agency handling of Clean Water Act permits for surface coal-mining operations.

While EPA officials concluded that state agencies “do an effective job” at implementing effluent limits, the agency also found some serious problems:

— EPA could find little evidence that state regulators conduct “meaningful water quality impact assessments” when they issue water pollution authorizations through general permits. (Kentucky and Ohio use general permits).

— Incredibly, state regulators generally do not assess whether actual or proposed discharges from surface mining operations have a “reasonable potential” to cause or contribute to excursions of water quality standards.

— State records either do not clearly document, or provide little documentation, regarding ambient and effluent data, or data from similar mines, used to assess water quality impacts and the potential for new permits to harm water quality.

— Most Appalachian states do not currently have numeric limits for conductivity, total dissolved solids and sulfates. Instead, states rely on “narrative” water quality guidelines, but generally do not implement those in a way that deals effectively with conductivity, TDS and sulfates.

Mountaintop removal mining in the Gauley River watershed has landed the Gauley on the annual list of endangered waterways published by the group American Rivers.

We’ve got a story on the Gazette’s Web site about this development, and you can read the American Rivers discussion of the threats to the Gauley here.  The entire list of endangered rivers is here.

Among the recommendations from American Rivers is that EPA publish tougher national water quality guidance for selenium, something that we’ve reported before here appears likely to be coming soon. Interestingly, West Virginia Public Broadcasting’s Erica Peterson reported this morning that U.S. EPA has filed specific objections to the Manchin administration’s continuing efforts to give coal operators more time to comply with the existing selenium standards.

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It’s nice that some things never change in West Virginia … like the lengths my friend Congressman Nick Rahall is willing to go to show his loyalty to the coal industry.

Rahall’s office today is promoting this letter that Rahall — along with Rep. Alan Mollahan, D-W.Va., and Rick Boucher, D-Va. — sent to EPA Administrator Lisa Jackson to complain about EPA’s latest effort to try to reduce the pollution from mountaintop removal coal mining.

The letter focuses on EPA’s recent guidance for how states should handle coal-mining pollution that dangerously increases the electrical conductivity of Appalachian streams.

In a press release, Rahall’s office said:

The legislators argued that much more work must be done to understand the broad effects of the policies contained in the Guidance on coal mining and other economic activities throughout Appalachia. In particular, the Guidance contains newly proposed limitations on the level of conductivity (electrical charge) in streams impacted by surface mining operations, a matter that has become a central and controversial issue in surface mining permit applications in the Appalachian states over recent months.

What’s missing from that?

Well, how about any suggestion from Rep. Rahall that perhaps the Environmental Protection Agency should be looking at what the impacts of increased conductivity is on Appalachian headwaters streams and water quality downstream from mining operations?

I’ve blogged before about all of the things that Rep. Rahall could be — but is not — doing that would try to find a balance between coal mining and environmental protection. This is yet another example of what has become a more and more one-sided view from the congressman who has represented Southern West Virginia’s coalfields for more than 30 years.

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New water pollution suit filed against Massey

Four environmental groups have just filed a major new water pollution lawsuit against Massey Energy.

The suit targets Massey for allegedly violating permit limits for toxic aluminum at as many as 16 mines covered by seven Clean Water Act permits in West Virginia. The suit names Massey subsidiaries Elk Run Coal Co., Independence Coal Co., Marfork Coal Co., Peerless Eagle Coal Coal, and Power Mountain Coal Co.

According to a news release, some of the mines involved are also violating permit limits for other pollutants, including iron, pH, and suspended solids. In total, these mines racked up approximately 3,300 days of permit violations in the period from April 2008 through December 2009.

The suit was filed in U.S. District Court in Charleston and a copy is posted here.

This suit follows a formal notice of intent to sue that was filed in January (see previous posts here and here). It was filed on behalf of the Sierra Club, the Ohio Valley Environmental Coalition, Coal River Mountain Watch and the West Virginia Highlands Conservancy.

Judy Bonds of Coal River Mountain Watch said:

Massey puts profits before people in communities. Massey is an outlaw company that continues to show contempt for the people of Appalachia.

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New EPA data shows toxic pollution from mining

We had a story in this morning’s print edition that was a bit of a spin-off from yesterday’s Coal Tattoo post about a petition seeking a federal takeover of Kentucky’s program to regulate water pollution from coal mining.

The story detailed part of the petition citing previously unreleased U.S. EPA data showing high levels of toxicity in water downstream from mining operations in Kentucky and West Virginia. A copy of the report the story is based on is posted here.

Some readers may recall that U.S. EPA had recently backed off announcing a plan that would have required more of this type of special toxicity testing by mining operators across the region.

Kentucky state officials declined to comment when I contacted them yesterday, but my friend Jim Bruggers at the Courier-Journal in Louisville  had a story on this EPA takeover petition today, that included some comments from them:

State officials on Monday said they had not seen the petition, nor had they seen the analysis of the EPA water sampling. But they said they are moving to try to meet new EPA demands to reduce water pollution from surface mining.

But R. Bruce Scott, commissioner of the Kentucky Department for Environmental Protection, also acknowledged “severe funding concerns” that have left his agency struggling to meet its obligations. Division of Water, which oversees the pollution discharge program, has lost more than 50 positions in recent years, dropping from more than 300 to about 250, he said.

And, Jim included this in his story:

It’s unlikely EPA would take over the program. The agency has never revoked a state’s delegated authority under the Clean Water Act.

Louisville environmental attorney Tom FitzGerald, who was not involved in filing the petition, said EPA would be more likely to try to work with Kentucky to improve any shortcomings, including the funding problem.

“These folks are trying to do their jobs,” he said. “They just don’t have the resources.”




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Breaking news in concerning coal permitting and enforcement in our neighboring state of Kentucky:  Four environmental organizations are filing a formal petition asking the U.S. Environmental Protection Agency to take over the state’s National Pollution Discharge Elimination System (NPDES) program.

The petition, which I’ve posted online here, alleges a “complete breakdown” of Kentucky’s implementation and enforcement of the Clean Water Act permitting program. In particular, the petition alleges:

… The state’s capitulation to the coal industry and its complete failure to prevent widespread contamination of state waters by pollution from coal mining operations leaves EPA no choice but to withdraw its approval of the program.

The petition cites the Kentucky Division of Water’s own figures showing 1,200 miles in the Upper Kentucky River watershed, nearly 490 miles in the Upper Cumberland River watershed, and 780 miles in the Big Sandy/Little Sandy/Tygarts Creek watershed as impaired with coal mining as a suspected source. But, the petition alleges this nearly 2,500 miles of impaired streams in the coalfields of eastern Kentucky “seriously underestimates” the scope of actual stream impairment.

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Afters years of delays, West Virginia’s Department of Environmental Protection has taken a small step toward forcing the coal industry to stop violations of the state’s water quality limits for toxic selenium.

tom-clarke21Tom Clarke, director of the WVDEP Division of Mining and Reclamation, has denied 17 requests from mining operations to extend the deadline for them to comply with selenium limits.

In some instances, WVDEP has concluded mine operators have done enough work to try to come into compliance to deserve another extension. In others, WVDEP believes approving the extension would violate the Clean Water Act’s prohibition against “backsliding” on permitted pollution limits.

Sounds pretty good, huh?

Well, wait. There’s more.

It turns not that not all of the public notices issued by WVDEP indicating it planned to approve selenium compliance extensions were sent out in error.

WVDEP plans to approve compliance extensions on at least 14 other mining permits, and public notices on those have gone out — seeking comment before WVDEP finalizes the extensions.

In the meantime, some of the companies that have been turned down by WVDEP have already filed appeals with the state Environmental Quality Board, and are hoping that board suspends the WVDEP denials before the crucial deadline of April 6, 2010. If EQB WVDEP doesn’t, then the permit limits on those operations would become final — and might mean the anti-backsliding provisions of the Clean Water Act would prohibit the mine operators from getting any further extensions.

Stay tuned …

Updated: The EQB has granted the requested stays pending a hearing on the appeals.

Mine board rules for ICG in Taylor County case

The West Virginia Surface Mine Board has ruled in favor of International Coal Group in the case over the new longwall mine proposed for Taylor County.

I didn’t attend the hearings on this one, and I haven’t seen a full ruling from the board, so at this point I’m just going to post this “Notice of Decision” issued by the board.

Also, there’s a news release from ICG posted here that includes this quote from company CEO Ben Hatfield:

We are pleased the Surface Mine Board agrees that our Tygart No. 1 mine plan is environmentally responsible and meets all state regulatory requirements. Our current business plan anticipates that we will resume construction on the Tygart project in mid-2011, with early development production projected for late 2012.


WVDEP trying to head off EPA on mining limits?

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West Virginia’s Department of Environmental Protection just announced plans to seek public input on how the agency should enforce a key part of our state’s water quality standards.

But is this all just part of an effort to avoid any federal government crackdown on mountaintop removal, or is WVDEP serious about coming up with a plan to reduce the impacts itself?

WVDEP is going to start accepting public comments on implementation of what’s known as the narrative standard. As we’ve gone over before on Coal Tattoo, that standard prohibits:

… Any other condition that adversely alters the integrity of the waters of the state  … no significant adverse impact to the chemical, physical, hydrologic, or biological components of aquatic ecosystems shall be allowed.

Of course, that standard is one of the major legal triggers the federal Environmental Protection Agency has cited in its efforts to try to force West Virginia regulators and the state’s coal industry to reduce the impacts of mountaintop removal.

secretary-randy-huffman-portrait_small2WVDEP Secretary Randy Huffman called me this afternoon to tip me off that this formal announcement was coming. You’ll recall that he was nice enough to do the same thing two months ago, when WVDEP first announced plans to come up with a document to guide enforcement of the narrative standard. Oddly, though, Randy told me today that WVDEP is not putting out a proposed guidance document for public review. Instead, WVDEP is just going to ask anyone who is interested to submit ideas for what such a document might eventually say. Randy said:

It’s not a comment period, because it’s not a standards issue.

But, he added:

That seems to be a big gap in the water regulatory program right now. it’s necessary for us to do this to get a hold of our program.

Randy said he doesn’t want stacks of studies, reports or data, but actual suggestions for how to interpret the narrative standard:

I’m not looking for data and reports. I have that. Nor do I intend to debate the pros and cons of coal mining. What I am looking for are well-thought-out ideas on how we can measure aquatic life impacts and tie those impacts back to the problem where we can then fix it, using the tools of the Clean Water Act.

Comments can be sent to WVDEP’s office at 601 57th Street SE
Charleston, WV 25304. Or, you can e-mail them.

Still, why is WVDEP doing this comment period now, rather than drafting its proposed policy and then seeking comment on it?

Continue reading…

While the rest of us were focused on President Obama’s big meeting with West Virginia Gov. Joe Manchin and other energy state governors, U.S. District Judge John T. Copenhaver issued a pretty significant ruling in a water pollution case against a Fayette County coal operation.

The ruling, which I’ve posted here, again supports the notion that private deals the West Virginia Department of Environmental Protection works out with coal companies to resolve water pollution violations do not prevent citizen groups from filing their own Clean Water Act lawsuits to try to force companies to stop violating permit limits.

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When will Massey’s water pollution violations stop?

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Well, Massey Energy Chief Executive Don Blankenship is at it again … writing letters to the editor wrongly arguing that the planet is cooling and  tweeting away his attacks on the federal government.

At the same time, a new legal action against his company has revealed that Massey’s water pollution violations have become more frequent since a record $20 million Clean Water Act lawsuit settlement with U.S. EPA.

As I pointed out before, when the settlement was announced, federal government lawyers predicted it would force Massey to clean up its act. Remember that the EPA lawsuit — alleging more than 60,000 days of water discharge violations over a six-year period — was hardly the first enforcement action against Massey. Among a long list of other such actions, two Massey subsidiaries had pleaded guilty previously to criminal violations of the Clean Water Act.

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Two years ago, when the U.S. Environmental Protection Agency reached a record $20 million Clean Water Act settlement with Massey Energy, this was the lead of my Gazette story on the deal:

Federal environmental regulators believe a record $20 million fine, new pollution monitoring requirements and the threat of automatic penalties for additional violations will force Massey Energy co. to change the way it does business.

Well … it hasn’t turned out that way, at least according to a new formal Notice of Intent to Sue sent to Massey last week by the Sierra Club, the Ohio Valley Environmental Coalition, Coal River Mountain Watch and the West Virginia Highlands Conservancy.

According to the legal notice, which I’ve posted here:

Remarkably, Massey’s violations have grown more frequent after the settlement with EPA than they were before EPA brought its enforcement action.

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EPA: Mine discharges killed Dunkard Creek

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A new federal government report blames coal-mining discharges for creating the conditions that allowed an exotic algae to bloom, killing all aquatic life in Dunkard Creek, the scenic stream along the West Virginia-Pennsylvania border.

My buddy Don Hopey at the Pittsburgh Post-Gazette had the first story on this here, and you can read the report for yourself here.

As Don reported, the EPA report agrees with previous West Virginia Department of Environmental Protection conclusions that the toxic Golden Algae was responsible for killing thousands of fish, mussels, salamanders and other aquatic life in Dunkard Creek in September. It’s not clear exactly how the algae got there in the first place.

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Late last week, West Virginia citizen groups filed an update to their petition asking the federal Environmental Protection Agency to take over Clean Water Act permitting and enforcement from the state’s Department of Environmental Protection.

As you recall, the original petition filed in May cited a variety of problems with the way DEP is handling its duty to protect West Virginia’s rivers and streams.

This supplemental petition is more narrowed in focus: It blames the death of Dunkard Creek from a massive fish kill on WVDEP’s inaction on longstanding coal industry pollution problems.

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Dunkard Creek fish kill: A wake-up call for WVDEP?

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We’ve discussed before the broader implications of the fish-kill disaster on Dunkard Creek in Northern West Virginia, and how it highlights the dangers of the Department of Environmental Protection’s failure to set water quality standards for total dissolved solids or write cleanup plans to address increased conductivity in streams across the state.

It might be that it takes this kind of terrible incident to shake the folks at WVDEP into moving more quickly to deal with both of these important issues.

Speaking to reporters after updating state lawmakers on the Dunkard Creek situation, WVDEP water director Scott Mandirola said the fish kill has forced his agency to re-examine how it has handled both the TDS issue and stream cleanup plans for streams with excess conductivity:

It certainly changed the playing field a little bit. 

While he didn’t make this clear in his prepared presentation to a special legislative interim committee on water issues, Mandirola said he generally agrees with the conclusions of the Pennsylvania Department of Environmental Protection, which has blamed CONSOL Energy mining discharges for the salty water conditions that allowed golden algae to grow to dangerously toxic levels in Dunkard Creek.

Mandirola said WVDEP may never know exactly how the golden algae got into Dunkard Creek in the first place. But, he said, there’s no real way to actually get rid of it. So regulators and water quality officials now need to focus on reducing conditions — primarily the salty water — that foster the algae to turn toxic:

We can’t ignore it. If we ignore it, we may see an event like this again.

I’ll have more on today’s legislative meeting in tomorrow’s Gazette. In the meantime, you can check out presentations by WVDEP and the state Division of Natural Resources on the fish kill here and here.

Pa. thinks CONSOL to blame for fish kill

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While I was busy blogging about the big Army Corps of Engineers public hearing on mountaintop removal, my buddy Don Hopey at the Pittsburgh Post-Gazette was tracking down the latest on the Dunkard Creek fish kill.

He’s got the story, and here’s what he says:

A heretofore undisclosed underground flow of mine pool water between Consol Energy’s Blacksville No. 1 and No. 2 mines may have contributed to the highly salty, polluted discharges that caused the massive, month-long fish kill on Dunkard Creek.

The Pennsylvania Department of Environmental Protection said stream sampling shows discharges high in dissolved solids and chlorides from Consol Energy’s Blacksville No. 2 Mine are the “primary immediate source” of the fish kill that last month wiped out aquatic life on 35 miles of the 38-mile stream that meanders along the Pennsylvania-West Virginia border.

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