Coal Tattoo

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Coal Tattoo readers have followed the ongoing controversy over efforts by West Virginia’s coal industry to further delay compliance with water quality limits for toxic selenium pollution from coal-fired power plants. (See previous posts here,  here, here, and here).

Now, federal regulators are focusing in on selenium discharges from coal-fired power plant waste dumps, as part of the U.S. Environmental Protection Agency’s broader examination of coal ash, prompted in large part by the December disaster at a TVA ash impoundment in East Tennessee.

Juliet Eilperin reported on this in Sunday’s Washington Post. According to her story:

Faced with new evidence that utilities across the country are dumping toxic sludge into waterways, the Environmental Protection Agency is moving to impose new restrictions on the level of contaminants power plants can discharge.

Plants in Florida, Pennsylvania and several other states have flushed wastewater with levels of selenium and other toxins that far exceed the EPA’s freshwater and saltwater standards aimed at protecting aquatic life, according to data the agency has collected over the past few years. While selenium can be beneficial in tiny amounts, elevated levels damage not only fish but also birds and people who consume contaminated fish.

But the reason more selenium and metals such as arsenic are now entering U.S. waterways is because the federal government has pressed utilities to install pollution-control “scrubbing” technology that captures contaminants headed for smokestacks and stores them as coal ash or sludge. The EPA estimates that these two types of coal combustion residue — often kept in outdoor pools or flushed into nearby rivers and streams — amount to roughly 130,000 tons per year and will climb to an estimated 175,000 tons by 2015.

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Mine spill Monday …

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Drainage from an old abandoned mine in East Bank caused a massive mudslide on Monday that closed W.Va. 61. Gazette photo by Rusty Marks

Blowouts and runaway mine discharges are in the news this morning in West Virginia and Eastern Kentucky.

We’ve got an updated Associated Press story on the blowout in Leslie County, Ky., on our Web site here.

And here in Kanawha County, W.Va., a blowout from an abandoned mine has caused a mudslide that has a highway blocked and a school closed in the East Bank area. We’ve got a story on that here, and Gazette reporter Rusty Marks was up there taking photos and will be updating our coverage.

In the Kentucky situation, officials are reporting that the 10,000-gallon-per-minute discharge is polluting Robinson Creek. But for some reason, the AP is taking the line in this story that it’s not that big a deal to have a blowout that pollutes streams — like it’s a normal cost of the coal business — as long as no one is hurt and there are no evacuations:

A mine blowout in southeastern Kentucky was releasing thousands of gallons of water Sunday from an underground mine that had not been used since the 1970s, but no injuries or evacuations were reported, state officials said.

“We’re not looking at hillside failures,” said Paul Rothman, spokesman for the state Energy and Environment Cabinet. “We don’t see that happening here.”

Mine blowout reported in Kentucky

We’ve got an AP report on the Gazette Web site about a mine blowout in eastern Kentucky. Can’t tell for sure how serious it is.

There’s a longer and perhaps more up-to-date AP story here at the Lexington Herald-Leaders’ site.

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secretary-randy-huffman-portrait_small.jpgRemember how West Virginia Environmental Protection Secretary Randy Huffman wanted 3 1/2 years  to obtain water pollution permits for abandoned mine sites where  DEP is treating toxic discharges to streams?

Well, U.S. District  Judge Irene M. Keeley apparently didn’t think too much of Huffman’s proposal.

After a hearing on  Wednesday, Keeley gave the DEP just six months to apply for these permits and another six months to obtain the permits. I’ve posted the judge’s order, issued Thursday, here. The order applies to 18 abandoned mine sites that were targeted by the lawsuit brought by the West Virginia Highlands Conservancy  the West Virginia Rivers Coalition.

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The entrance tunnel and water treatment facility for the Kensington Gold Mine against Lion Head Mountain near Juneau, Alaska can be seen. (AP Photo/Coeur Alaska, File) 

We had a comment on the Coal Tattoo a few weeks back that  asked what relevance an ongoing U.S. Supreme Court case out of Alaska had to the fight in Appalachia over mountaintop removal coal mining.  The reader, Red Desert, cited a story in the L.A.  Times about the case.

I’ve read a fair amount on this case, and followed some of these issues on The Pebble Blog, by my friend Elizabeth Bluemink at the Anchorage Daily News.

But to get some better information for Coal Tattoo readers, I’ve enlisted my first guest blogger, lawyer Derek Teaney  of the Appalachian Center for the Economy and the Environment. Here’s Derek’s take on the Alaska case:

teaney.jpgI believe the 2004 rule change referenced in the LA Times article regarding the Alaska gold mine case currently pending before the  United States Supreme Court must be the same rule change that the Bush administration used to overturn Judge Haden’s ruling regarding the “fill rule.” That was a 2002 rule change, however, and the LA times identifies it as a 2004 change. Far be it for me to suggest that the LA Times is inaccurate, but I can’t think of any other rule change that would have enabled the Alaska gold mine to proceed as planned.

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Mining leads the nation … in toxic emissions

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Toxic pollution decreased across the country in 2007. But the industry with the largest toxic emissions remains … you guessed it: Mining.

That’s according to the latest Toxics Release Inventory, made public yesterday by the U.S. Environmental Protection Agency

The metal mining sector reported nearly 1.2 billion pounds of toxic releases and waste disposal, according to disclosures companies filed with EPA.  Coal mining reported far less, but still more than 13.4 million pounds of emissions and waste disposal.  Both sectors cut their emissions, coal by about 10 percent and metal mining by 8 percent. (Electric utilities — mostly coal-fired power plants — are a  close second, btw).

But the huge total toxic figures reported by mining explains why the industry fought long and hard to avoid having to report its pollution to the TRI program.

The National Mining Association Web site has some information on the industry perspective.

All of the TRI data is available here, and state-by-state fact sheets here. The public can also do searches and queries on TRI data at EPA’s TRI Explorer site.

Citizen slurry study II

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Underground injection of coal slurry is a serious threat to public health.

That’s the conclusion of “Underground Injection of Coal Slurry,” a Sludge Safety Project Citizens’ Report being issued today at the Capitol. Some of the results were already made public, in a story by the AP’s Vicki Smith.

I’ve posted the study, as well as a summary report on some water quality data from Wheeling Jesuit University, and a table that shows violations of heavy metals standards at injection sites and residential wells.

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Stalling on selenium — again

A bill introduced late this week in the West Virginia Legislature would give the coal industry more time — again — to comply with water quality limits for toxic selenium pollution.

green_mike.jpgSenate Bill 461 has 20 sponsors, including Senate President Earl Ray Tomblin, D-Logan, and Energy, Industry and Mining Chairman Mike Green, D-Raleigh (who lists membership in Friends of Coal on his official biography, see photo at right).  After the bill was introduced on Thursday, it was referred to Green’s committee. Passage seems likely, since nine of the committee’s 13 members are sponsors of the bill.

The bill would give anyone holding a water pollution permit from the state Department of Environmental Protection — in this instance, coal companies — until July 1, 2012, to comply with water quality limits for selenium.

Recall that the coal industry and West Virginia regulators have been scrambling to find ways to avoid complying with these standards for years, since federal studies found dangerous levels of selenium runoff from mountaintop removal mines in Southern West Virginia.  A federal judge and the state Environmental Quality Board have both found that the industry has been stalling its efforts to stop selenium violations. (Also see Stalling on selenium?)

It’s also important to remember that the nation’s top expert on selenium pollution’s impacts on aquatic life, Dennis Lemly,  has warned that at least one West Virginia watershed, the Mud River, is “on the brink of a major toxic event” because of selenium pollution:

If waterborne selenium concentrations are not reduced, reproductive toxicity will spiral out of control and fish populations will collapse.

And thanks to Leon, whose comment on Coal Tattoo brought this bill to my attention.

W.Va. streams impaired

acid_mine_drainage.jpgOnly about one-sixth of all West Virginia streams are currently clean enough for all of their designated uses, according to a new report from the state Department of Environmental Protection.

On Friday, WVDEP announced that the federal Environmental Protection Agency had approved the state’s latest Integrated Water Quality Monitoring and Assessment Report.  (EPA approved the report on Jan. 17, but for some reason WVDEP didn’t announce the action until Friday).

The report is intended to comply with the requirements of Section 303(d) and  Section305(b) of the Clean Water Act.

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Suing Salazar II

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In Suing Salazar Part I, we learned about a new lawsuit against the Interior Department over its approval of a West Virginia rule change to weaken stream protections from damage caused by coal mining. That post went through a lot of history about stuff like cumulative hydrologic impact assessments and material damage and other alphabet soup of mining regulations.

But it’s important to understand that this issue about how Interior’s Office of Surface Mining defines “material damage” isn’t new. In fact, the Democrats in Congress have had their chance to step in and do something about it, and have simply ignored the issue.

rahall_photo.jpgBack in July 2007, the House Natural Resources Committee held a hearing to mark the 30th anniversary of the passage of the federal Surface Mining Control and Reclamation Act.  The committee’s chairman, Rep. Nick J. Rahall, D-W.Va., served on the conference committee that wrote the final version of SMCRA.

Among other things, citizen groups who traveled to Washington, D.C., to testify told Rahall’s committee about problems with the way OSM and the states were defining “material damage.”

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Suing Salazar I

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Sometimes, trying to understand strip mining lawsuits becomes an exercise in alphabet soup — AOC, CHIA, PMLU — it’s daunting for even experts, let alone citizens, to try to understand. But it’s all pretty important, and how terms like those are defined decides the level of protection that streams and forests receive from state and federal regulators.

Lawsuits have been fought for 30 years over how some of those terms are interpreted, as Obama Interior Secretary Ken Salazar  (pictured above) is about to find out.

Take the term “material damage,” for example…

When Congress passed the federal strip mining law in 1977, lawmakers directed that “material damage to the hydrologic balance outside the permit area” be prevented, and that disruption to the hydrologic balance in the mined area be minimized. But what the heck does material damage mean?

Walt Morris, a Charlottesville, Va.,  lawyer has been fighting West Virginia regulators and the Interior Department’s Office of Surface Mining, Reclamation and Enforcement, over that very issue for years.

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Stalling on selenium?

In early December, U.S. District Judge Robert C. Chambers declined to hold Apogee Coal Co. in contempt of court for continuing to stall the cleanup of selenium pollution from a mountaintop removal mine in Logan County. But Chambers indicated he was running out of patience with the Patriot Coal subsidiary, and would hold Apogee officials to a June 30, 2009, compliance deadline.

Recall that federal officials have found widespread selenium violations downstream from mountaintop removal operations, and the nation’s leading scientist of the issue warns that at least one West Virginia waterway is on the “brink of a major toxic event” because of selenium violations.

Earlier this month, Apogee lawyers filed a monthly report with Chambers, and told the judge the company was “attempting to comply in good faith” with the court’s deadlines.

But now, internal company documents filed in the case indicate Apogee has been, in effect, keeping two sets of books.

Apogee has been giving Chambers one calendar, showing that it will meet the court’s deadlines.  At the same time, the company’s consultants have been keeping a “realistic schedule” that delays compliance until at least September — three months after the court’s deadline.

WVDEP wants 3 1/2 years (!?!) to give itself a permit

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A month ago, U.S. District Judge Irene M. Keeley ordered the Manchin administration to obtain water pollution permits for the abandoned mine sites it maintains under the West Virginia Department of Environmental Protection’s Special Reclamation Program.

Reading DEP Secretary Randy Huffman’s recent response, I have to wonder if Judge Keeley knew what she was getting herself into.

secretary-randy-huffman-portrait_small.jpgHuffman has asked for 42 months — that’s right, 3 1/2 years — to obtain these permits. But it’s not clear from agency lawyer Heather Connolly’s Monday court brief if even that is going to be enough time for DEP to act:

It is extremely difficult for WVDEP to predict, with any accuracy, how much time will be needed to apply for, and obtain NPDES permits for all forfeiture sites needing water treatment.

While it may end up sounding like a bizarre bit of bureaucratic nonsense — come on, DEP giving itself a permit? — the issue in the federal court lawsuit here is pretty significant for the state’s future water quality, and especially for who ends up paying the tab for the damage from past coal mining abuses.

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Seeking slurry answers … and missing deadlines

Vicki Smith from The Associated Press has long weekend story about coal slurry, exposing the failure of the state Department of Environmental Protection to figure out whether underground injection of this coal-cleaning waste product is getting into drinking water supplies and making people sick.

DEP Secretary Randy Huffman bluntly told Smith that his agency simply doesn’t have the answers that coalfield residents and lawmakers are demanding:

We have some concerns, to be quite honest with you. We have questions we’re trying to get some answers to, to make sure it’s safe.

Smith reports:

The DEP cannot say precisely what’s in that waste, how much is injected annually, or whether and where it migrates.

But incredibly, she goes on:

…coal operators are still permitted to inject slurry at 15 locations.

The Gazette posted this story online Saturday, and I’ve also added it to our Mining the Mountains special section.

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Let’s make a deal II

I reported yesterday about the big Patriot Coal Corp. settlement with the federal government over water pollution violations at its West Virginia operations.

Among other things, I noted that the company was going to be settling separately with the state Department of Environmental Protection over water pollution violations at Patriot operations that were not part of the company’s acquisition of Magnum Coal. (See Let’s make a deal?)

Well, this afternoon, my e-mail inbox started bulging with more public notice announcements about the comment period for DEP’s separate settlements with more than a dozen Patriot subsidiaries.

We don’t know the details of these settlements, because DEP’s enforcement chief, Mike Zeto, refuses to post the settlement documents themselves on the agency’s Web site. And, the public notices simply say things like:

The WV Department of Environmental Protection (WVDEP) and Jarrell’s Branch Coal  Company have proposed a settlement of an Administrative Consent Order which resolves violation(s) of the WV Water Pollution Control Act. In accordance with the proposed Consent Order, Jarrell’s Branch Coal Company has agreed to pay administrative penalties and to comply with the Act. Final settlement is subject to comments received during the thirty (30) day period ending March 13, 009. Further information about this administrative Consent Order is available by contacting the Chief Inspector, WVDEP/Environmental Enforcement, 601 57th Street SE, Charleston, WV 25304, (304) 926-0470. 

But Kathy Cosco, DEP’s communications officer, was kind enough to type up, scan and then e-mail to me  a list of the total penalty amounts for each company involved. I’ve posted that here.

The bottom line: eight of 14 Patriot companies involved will pay a total of $337,900 in penalties. We don’t yet know how many violations were involved, or how serious those violations might have been.

Hopefully, I can get my hands on the actual settlement agreements next week. If I do, I’ll post them all here.

And if you have comments — or think DEP should post these documents online for everybody to see –  see the address and phone number above. Or, you could call Mike Zeto directly at 304-926-0499, ext. 1324. Or e-mail him at Michael.A.Zeto@wv.gov.

Let’s make a deal?

Environmental groups are asking some interesting questions about the federal government’s new Clean Water Act settlement with Patriot Coal Corp.

Joe Lovett, executive director of the Appalachian Center for the Economy and the Environment, told me that citizen groups he often represents will probably challenge the deal, after going along with a similar settlement (including a record $20 million fine) last year with Massey Energy.

I spelled out the basics of the $6.5 million deal with Patriot in a story for our Print edition today. And now, I’ve posted the EPA/Department of Justice complaint against Patriot here and the consent decree here.

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Breaking news: Another big water pollution fine

We’ve posted a story on the Gazette Web site about some fairly big news, involving Patriot Coal Corp. agreeing to a $6.5 million Clean Water Act settlement with EPA and the Justice Department.

That story is here, and the government’s press release is here.

This comes more than a year after Massey Energy agreed to a record $20 million fine in a similar case.

Details on the Patriot deal are still coming out. The government doesn’t seem to have posted the actual settlement agreement yet, and it hasn’t been added to the federal court Pacer system either.

We’ll have more on this later, probably in tomorrow’s print edition and on the Gazette Web site.