Coal Tattoo

‘One of the good coal operators’

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Jim Justice

Last week, after U.S. District Judge Irene Berger sentenced Don Blankenship to the maximum penalty allowed by law — one year in jail and a $250,000 fine — Democratic gubernatorial candidate Jim Justice had little to say about the historic events of the day. His campaign spokesman issued this statement:

What’s important today are the feelings of the families who lost loved ones. I hope all of the families have the opportunity to be heard on whether or not they feel justice was served.

But it sounds like Justice has decided to add to those comments, at least according to this story from WOAY:

I think we spent an ungodly amount of money within our state to probably keep Booth Goodwin in the limelight and end up with a misdemeanor charge. If that’s all we are going to end up with, why did we spend that much money to do that?

This comes a day after Justice’s gubernatorial campaign was touting a new campaign ad in which United Mine Workers of America President Cecil Roberts — in what seemed like quite an awkward phrase — called Justice “one of the good coal operators.”

Continue reading…

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UBBPortal

It is hard to imagine what the families of those 29 miners have been through. Think about it. Your husband or son or brother or father is snatched away — blown away really — stolen from your family in a violent underground explosion.

But it’s not like they just didn’t come home from work one day. You got a terrifying phone call. The phone call mining families have come to fear, but somehow always know could come. And then you spent a couple days in the ritual of waiting and hoping and praying that maybe, just maybe he somehow survived.

But even when that reality hits you, it’s not like you got to just bury him and grieve and try to find a way to live. There were meetings, and hearings and lawsuits. And all of the people from the media — maybe they’re just trying to do their job, but after a while having a microphone in your face gets kind of old.

And then, the CEO of the company who ran the mine that blew up got indicted. Maybe there would be justice, you thought. But then there was the trial. And it seemed like it would never end. And it was confusing — What were all the lawyers talking about up at the judge’s bench? What do all of these objections mean? Are those jurors even paying any attention to any of this?

Finally, though, there was a verdict. But even then — even then — everybody keeps talking about how none of this was really about what happened to him. What happened to all of them. It was about something else, not about what happened to those 29 miners.

Just imagine.

Today is one of those days on the coalfield calendar. Another mine disaster anniversary. There are so many of them.  Two weeks ago, it was Centralia, Illinois. March 25, 1947, 111 miners killed. Later this month, it’s Dola No. 1 in Harrison County. April 25, 1963, 22 dead. Then Federal No. 3, Everettville, W.Va., 97 miners.

Today, lots of people will talk about how they remember, how they’re praying for the families. How they’ll never forget.

I’m sure that’s all true. People do remember, and they do pray. Certainly, those families will never forget. The pain that folks like Gary and Patty Quarles must feel. I can’t imagine. They lost their son at Upper Big Branch. That never goes away. They won’t forget what happened.

But what about the rest of us? How can it be that today, of all days, there aren’t hundreds of people over in front of the Robert C. Byrd United States Courthouse for a protest or a vigil or just a quiet remembrance? Where are all those friends who care so much about our state’s coal miners now? What about the people who had a chance to speak up before all those miners died, and didn’t? What about all of us, who have a chance now to speak up, to do whatever needs to be done to make sure it doesn’t happen again?

Because while today is a day like many others on the coalfield calendar, tomorrow is a quite different sort of day.

Mine Explosion CongressDuring a hearing scheduled to start at 10 a.m., U.S. District Judge Irene C. Berger will sentence that CEO who got indicted. Don Blankenship is really a legendary sort of figure in Appalachia and the coal industry. He was once one of the region’s most powerful men. He’s still one of its richest.

Tomorrow in court, Blankenship will stand convicted by a federal jury of conspiring to willfully violate mandatory mine safety and health standards. He faces up to a year in prison and a $250,000 fine.

It’s a remarkable thing. A historic development. The CEO of one of the region’s largest coal companies was convicted of a mine safety crime after the worst mining disaster in a generation.

It’s true that Blankenship, as the defense makes clear in its recent court filings,  wasn’t charged with blowing up the mine. He wasn’t convicted of causing that explosion, of killing those 29 men.

But what Assistant U.S. Attorney Steve Ruby outlined in his sentencing memo to Judge Berger is also true:

We have known for a very long time what makes coal mines explode. We have known for a very long time how to prevent it. And, sadly, we have known for a very long time that some mine operators will ignore these hard-learned lessons until the law compels them to take notice. The mine safety laws, it is said with good reason, are written in coal miners’ blood.

Defendant knew full well the awful risks, dramatized time and again in ghastly fashion over the years, that he was taking by flouting the mine safety laws at Upper Big Branch. There was no mystery about what poor ventilation meant: buildups of methane that would ignite with the slightest spark. Yet UBB’s miners were left pleading for air. There was no question what accumulations of coal dust meant if not properly treated: a powder keg 1,000 feet below the surface, primed to blow at any time. Yet black dust pervaded the mine, a calamity in the making.

There was nothing the least bit hidden or mysterious about the dangers of how Defendant chose to run UBB. They manifested themselves openly, obviously, to anyone with the most basic knowledge of coal mining, and certainly to Defendant.

Ruby goes on to remind us about Blankenship, and provide more important context:

How does one take the measure of such a crime? Defendant was the chief executive of one of America’s largest coal companies—a multibillion-dollar behemoth with its shares traded on the New York Stock Exchange, a fleet of private aircraft, luxurious board meetings at posh resorts around the country, and vast resources to support its mining operations. He had every opportunity to run UBB safely and legally. Instead, he actively conspired to break the laws that protect coal miners’ lives. Although already fabulously wealthy by the time of the criminal conspiracy of which he stands convicted, Defendant’s greed was such that he would willfully imperil his workers’ survival to further fatten his bank account.

After the trial, some of the Blankenship jurors said that they didn’t know that conspiracy to violate mine safety standards was a misdemeanor. If that’s true, they were just following instructions from the judge — juries aren’t supposed to know potential penalties. They’re just supposed to decide guilt or innocence.

Deciding a just sentence will be up to Judge Berger. And of course, Blankenship’s appeal will be up to the 4th U.S. Circuit Court of Appeals.

Rally For CoalDeciding the potential penalties for a criminal conspiracy that puts miners at risk, though … well, that’s up to Congress. And when was the last time you heard any of West Virginia’s elected officials — either on the state or federal level — talking about the need to change that law, to make mine safety crimes felonies, and provide more serious punishments?

In Washington, our elected officials are way too busy making noise about the U.S. Environmental Protection Agency to do anything about coal-mine safety.

And in Charleston, about the only thing on the mine safety agenda has been  the coal industry bill to weaken mine rescue team requirements and some other safety mandates. Hardly anyone in the Legislature would bother to even ask decent questions about that bill, and Gov. Earl Ray Tomblin doesn’t seem to have hesitated to sign it. None of that is surprising if you remember that Gov. Tomblin’s legislative response to Upper Big Branch was not to crack down on things like coal dust or methane monitoring, but to drug test miners.

It’s hard to escape the words of the late Sen. Robert C. Byrd after the Sago Mine Disaster a decade ago:

I have seen it all before.  First, the disaster. Then the weeping. Then the outrage. And we are all too familiar with what comes next. After a few weeks, when the cameras are gone, when the ink on the editorials has dried, everything returns to business as usual. The health and the safety of America’s coal miners, the men and women upon whom the nation depends so much, is once again forgotten until the next disaster.

Just this morning, both Sens. Joe Manchin and Shelley Moore Capito issued statements to mark the Upper Big Branch anniversary.

Sen. Manchin said:

Six years ago I grieved with the miners’ families, West Virginians and the entire nation during the hours and days after the unspeakable mining tragedy at Upper Big Branch. Today on this sad anniversary, our hearts weigh heavy as we remember the tragic Upper Big Branch Mine Disaster. Not a day goes by that I don’t think about the 29 brave West Virginia miners we lost that day, who went to work and never returned home to their loved ones. I stayed with the miners’ loved ones through moments of hope and despair in the days following the devastating tragedy and saw the unbreakable bonds of family.

No family or community should ever endure a preventable tragedy like the one at Upper Big Branch again and this day reminds us that we always must put safety first. The health and safety of our miners will always be my top priority and I have always been committed to ensuring our miners return home safely every night. Our hearts are still broken and Gayle and I join all West Virginians in honoring those miners’ memories as we grieve their loss and pray for continued strength for their families.”

Sen. Capito said:

It’s hard to believe that six years ago today 29 miners lost their lives in an explosion at the Upper Big Branch coal mine. For many West Virginians, especially those who lost loved ones and friends, the memories from that terrible day are still so fresh in our minds. My heart still aches for the families of the 29 miners whose lives were forever changed on April 5, 2010. As our state continues to heal from this tragedy, I will continue my efforts to protect our coal miners who selflessly put their lives at risk in order to provide for their families and power our state.

No real mention in there of anything either of them has done recently to try to get any sort of mine safety bill, especially one that would toughen the penalties for mine safety crimes, moving in Congress. Thinking about the families and praying for them is obviously worth doing. But trying to divorce the mine disaster completely from the Blankenship case — and especially divorcing the weak state of current criminal laws about mine safety violations — seems to be quite a disservice to the men who died and to their surviving families.

It’s like we feel compelled to remember the Upper Big Branch Mine Disaster, but it’s convenient to at the same time forget how it happened and what needs done to make sure it doesn’t happen again.

Coal context: Playing along with election by gaffe

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AR-150429990

It’s hard to believe that it took Hoppy Kercheval at MetroNews until today to try to twist into some sort of politically motivated effort to destroy our way of life what was really little more than a bungled effort by Democratic presidential candidate Hillary Clinton’s at explaining her coalfield economic aid package.

But never fear, because Hoppy’s commentary doesn’t disappoint. He paints the real point of Secretary Clinton’s comments — that she wants to help coal communities that are suffering because of complex changes in our nation’s energy economy — as some sort of afterthought that she cooked up after Sen. Joe Manchin complained about the one sentence that industry has jumped on:

By Tuesday, Clinton was walking back her comment in a letter to Manchin.  “Simply put, I was mistaken in my remarks,” she wrote.  “I wanted to make the point that, as you know too well, while coal will be part of the energy mix for years to come, both in the U.S. and around the world, we have already seen a long-term decline in American coal jobs and a recent wave of bankruptcies as a result of a changing energy market—and we need to do more to support the workers and families facing these challenges.”

But Hoppy is hardly the worst among our state’s media when it comes to misinforming the public on this particular story. Here’s the Wheeling paper’s editorial:

Clinton, comfortably in the lead for the Democrat Party nomination for president, now seems positively boastful about her plans for the coal industry and for the coal-fired power plants on which tens of millions of Americans rely for reasonably priced electricity.

She wants to shut down as many mines as she can. She plans to use draconian taxes to make it impractical for utilities to use coal for power generation.

And then, remarkably:

During the same campaign stop, Clinton insisted that as president, she would help miners who lose their jobs because of her policies. She has not been specific about that, no doubt because if she has a plan, it is much like the socialist government strategies of the past: Offer laid-off workers a few years of unemployment benefits, then forget about them.

The Wheeling paper is just wrong. Like her plan or not, Secretary Clinton does have a plan and it’s actually reasonably specific (though the Gazette-Mail’s David Gutman did note in this story that how the total figure was reached was not entirely clear).  Those folks at the Wheeling paper can read about the plan here.

Hoppy and the Wheeling paper are hardly alone. You can see how much attention this one sentence is getting with a quick Google News search.  Within the space of two days, The Associated Press had put out two separate stories that described the comments from Secretary Clinton as her having “declared” that she was going to put coal miners and coal companies out of business.

Declared? Well, you can watch the video yourself and decide if you think that’s an accurate characterization. Someone at AP must not have — because after they put that out on the wire a second time, the write-thru of the story changed the wording and actually put the comments in a little bit more of the proper context.

But the damage was done. And I’m not talking here about damage to Secretary Clinton’s campaign. That’s her problem. The damage we should all be concerned about is the damage to our already severely weakened ability to actually discuss what’s happening in our coalfield communities, understand what’s driving changes in our energy economy, and try to find ways to come out the other side as a stronger, better state.

Continue reading…

Caring about coal miners?

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Senate Majority Leader Mitch McConnell, R-Ky., flanked by Sen. John Barrasso, R-Wyo., left, and Majority Whip John Cornyn, R-Texas, right, talks to reporters following a closed-door policy meeting at the Capitol in Washington, Tuesday, March 15, 2016. Sen. McConnell said he spoke to Republican presidential front-runner Donald Trump on Tuesday and asked him to condemn violence no matter who is responsible. "I took the opportunity to recommend to him that no matter who may be triggering these violent expressions or conflicts that we have been seeing at some of these rallies, it might be a good idea to condemn that and discourage it no matter what the source of it is," McConnell said. (AP Photo/J. Scott Applewhite)

Senate Majority Leader Mitch McConnell, R-Ky., flanked by Sen. John Barrasso, R-Wyo., left, and Majority Whip John Cornyn, R-Texas, right, talks to reporters following a closed-door policy meeting at the Capitol in Washington, Tuesday, March 15, 2016.

As predicted, the media obsession with one sentence from one presidential candidate continues, but it’s interesting to dig deeper into some of the reactions to Democrat Hillary Clinton’s comments about her plans for helping the nation’s struggling coal communities (by the way, I’ve posted Secretary Clinton’s letter to Sen. Joe Manchin here).

Some media accounts (see also here) have given attention to Senate Majority Leader Mitch McConnell’s reaction on the Senate floor:

… When President Obama was a candidate, he boasted that his energy tax policies would make electricity prices skyrocket for American families. When President Obama took office, his administration declared a war on coal families and on their jobs. For a time, his administration tried to deny it was declaring war on anyone, but now we hear boasting from the highest ranks of the Democratic Party that these policies are going to put coal miners out of business Miners in Kentucky and across the country know that coal keeps the lights on and puts food on the table. What they want is to provide for their families. But here is how more Democrats seem to view these hard-working Americans and their families: just statistics, just the cost of doing business, just obstacles to their ideology. This is callous, it is wrong, and it underlines the need to stand up for hard-working, middle-class coal families. That is what I have done here in the Senate. That is what I will continue to do. I hope our colleagues will join me.

But what hasn’t been mentioned much is that after Sen. McConnell’s comments, Senate Minority Leader Harry Reid made some comments on the floor (referring to this move by Sen. McConnell, documented by the Washington Post). Here’s what Sen. Reid had to say, according to the Congressional Record entry:

I understand the Republican leader’s concern about coal not being the way it was. It is simply that the American people have made a decision that we are going to have to look for another way to produce energy. There is still a place for coal in our society, but everyone has to acknowledge that it is not as it was a few years ago. I wish the Republican leader cared more about moving to help the pensions of these coal miners. They are desperately looking for support. We support them on this side. All the coal miners support it. We can get no support from the Republicans. We tried during the work we did at the end of the year. We came close, but Republicans said no.

I want all those coal miners from Kentucky and around the country to understand that we are trying to help them with their pensions, but unless we get some help from the Republicans, there will be no support. That is too bad. We are trying. We are trying. We are trying.

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main

While the coal industry and the media are focused on trying to turn Obama’s “war on coal” into Clinton’s “war on coal,” the U.S. Energy Information Administration reminds us today:

For decades, coal has been the dominant energy source for generating electricity in the United States. EIA’s Short-Term Energy Outlook (STEO) is now forecasting that 2016 will be the first year that natural gas-fired generation exceeds coal generation in the United States on an annual basis. Natural gas generation first surpassed coal generation on a monthly basis in April 2015, and the generation shares for coal and natural gas were nearly identical in 2015, each providing about one-third of all electricity generation.

Importantly:

The recent decline in the generation share of coal, and the concurrent rise in the share of natural gas, was mainly a market-driven response to lower natural gas prices that have made natural gas generation more economically attractive.

Still:

Environmental regulations affecting power plants have played a secondary role in driving coal’s declining generation share over the past decade, although plant owners in some states have made investments to shift generation toward natural gas at least partly for environmental reasons. Looking forward, environmental regulations may play a larger role in conjunction with market forces. Owners of some coal plants will face decisions to either retire units or reduce their utilization rate to comply with requirements to reduce carbon dioxide emissions from existing fossil fuel-fired power plants under the Clean Power Plan, which is scheduled to take effect in 2022 but has recently been stayed by the Supreme Court pending the outcome of ongoing litigation.

And who would have thought:

Beyond the growing market share for natural gas-fired generation over the past decade, coal’s generation share has also been reduced by the growing market share of renewables other than hydroelectric power, especially wind and solar. Unlike the growth of natural gas-fired generation, which has largely been market-driven, increased use of nonhydro renewables has largely been driven by a combination of state and federal policies. The use of renewable energy sources such as wind and solar has also grown rapidly in recent years so that generation from these types of renewables is now surpassing generation from hydropower.

Blankenship seeks sentencing delay

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Blankenship Leaving Nov 23

There’s another new filing in the Don Blankenship criminal case — this one is a request from the defense to delay the sentencing, which is currently scheduled for April 6 in U.S. District Court in Charleston.

Basically, the defense says that they need more time to prepare to defend Blankenship against any restitution being sought against him. They want to either delay the sentencing for 90 days or to hold a separate hearing later, after the sentencing, to deal with any restitution requests.

Also, interestingly, the new court filing notes this regarding restitution requests:

On March 14, 2016, the defense learned from the U.S. Probation Office that it had received dozens of additional restitution claims in response to a mailing to potential victims. As of the filing of this motion, the defense has not seen those claims, although it expects to get access to them soon. The defense will need time to review and defend against those claims.

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Blankenship phone

Photo by Joel Ebert

Late yesterday, federal prosecutors filed their response to a motion by former Massey Energy CEO Don Blankenship to block efforts to force him to pay nearly $28 million in criminal restitution when he’s sentenced early next month. The response brief, which I’ve posted here, is mostly a legal argument over whether restitution applies to the crime Blankenship was convicted of committing.

But if you read it closely, you’ll also notice a pretty interesting little detail:

Defendant has refused to comply with his obligations under 18 U.S.C. § 3664, which requires him to submit to the probation officer a description of his financial resources, including a list of his assets.

Here’s what that section of federal law says:

Each defendant shall prepare and file with the probation officer an affidavit fully describing the financial resources of the defendant, including a complete listing of all assets owned or controlled by the defendant as of the date on which the defendant was arrested, the financial needs and earning ability of the defendant and the defendant’s dependents, and such other information that the court requires relating to such other factors as the court deems appropriate.

In their new court filing, prosecutors say that Blankenship’s refusal to provide these financial details prevents the government “from making a complete argument for restitution” and also prevents the court “from conducting a meaningful and holistic review of restitution claims.” They go on:

Defendant should not be permitted to dictate the procedure of resolving restitution outside of § 3664 and Rule 32 of the Federal Rules of Criminal Procedure by demanding a response from the United States and adjudication from the Court on the restitution issues of his choosing, at his leisure.

Prosecutors say that a separate hearing, held within 90 days of Blankenship’s sentencing — currently scheduled for April 6 — is likely necessary to sort out the restitution issues.

Clinton and coal: Giving the industry its soundbite

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Democratic presidential candidate Hillary Clinton and Democratic speaks at the Ohio Democratic Party Legacy Dinner at the Greater Columbus Convention Center in Columbus, Ohio, Sunday, March 13, 2016. (AP Photo/Carolyn Kaster)

Democratic presidential candidate Hillary Clinton and Democratic speaks at the Ohio Democratic Party Legacy Dinner at the Greater Columbus Convention Center in Columbus, Ohio, Sunday, March 13, 2016. (AP Photo/Carolyn Kaster)

Well, it’s pretty clear that the coal industry got a potentially valuable soundbite last evening from Democratic presidential candidate Hillary Clinton. Secretary Clinton was asked to “make the case to poor whites who vote Republican why they should vote for you and your economic policies” and in offering one example, Secretary Clinton explained:

I’m the only candidate which has a policy about how to bring economic opportunity using clean, renewable energy as the key, into coal country. Because we’re going to put a lot of coal miners and coal companies out of business. And we’re going to make it clear that we don’t want to forget those people.

Those people labored in those mines for generations, losing their health, often losing their lives to turn on our lights and power our factories. Now we’ve got to move away from coal and all of the other fossil fuels. But I don’t want to move away from the people who did the best they could to produce the energy that we relied on.

As my friend Jim Bruggers at the Courier-Journal in Louisville points out, part of Secretary Clinton’s comment — “…We’re going to put a lot of coal miners and coal companies out of business” — sounds a lot like then-candidate Barack Obama’s remark in 2008 about how he would “bankrupt the coal industry“. Of course, the industry and its Republican friends have continued for years to take now-President Obama’s comments out of context. As I wrote during the 2008 campaign:

During a Jan. 17 interview with the Chronicle’s editorial board, an editorial writer noted that Obama co-sponsored a bill to encourage turning coal into liquid fuel for vehicles, an approach energy experts warn would likely create more greenhouse emissions than traditional gasoline. The editorial writer asked Obama how he squared his support for coal with the need to do something about climate change.

Obama responded that the country needs to “figure out how we can use coal without emitting greenhouse gases and carbon,” and that he believes a “cap-and-trade” emissions program is the best way to do that.

Such a program would put an overall ceiling on greenhouse gas emissions. Companies would need “allowances” from regulators for every ton of carbon dioxide their facilities pump into the atmosphere. Companies could reduce their emissions to meet the caps. Or they could buy or trade for “allowances” to keep using older facilities.

“That would create a market in which whatever technologies are out there being presented, whatever power plants are being built, they would have to meet the rigors of that market, and the ratcheted down caps that are imposed every year,” Obama told Chronicle editors. “So if somebody wants to build a coal power plant, they can, it’s just that it would bankrupt them because they’re going to be charged a huge sum for all that greenhouse gas that’s being emitted.”

Continue reading…

Who really runs West Virginia? (Part 2)

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COAL TRAIN

As this year’s session of the West Virginia Legislature grinds on, it continues to become clear who is really running our state — and honestly, it’s not just about political parties (though surely, the parties increasingly have a chance to show us what they really stand for in these final weeks).

Two things that are moving forward up at the statehouse as I write give us the true picture of our state’s politics.

First, there’s the bill that emerged just yesterday — originated in committee as deadlines loom — to slash West Virginia’s coal severance tax. This is a bill that’s been promoted by the West Virginia Coal Association and appears based at least partly on the positions advocated by Murray Energy, though Murray CEO Bob Murray has publicly called for an even bigger increase than the reduction from 5 percent to 3 percent included in this legislation:

Political platitudes and lip service regarding the importance of coal jobs in the State and support for them will not save these family livelihoods this time. Only immediate action to reduce the State’s tax on coal extraction will help protect them … the West Virginia coal severance tax must be reduced from five percent (5%) of the gross sales price of its coal to no more than two percent (2%) very quickly.

It appears — at least from what’s available online from the Legislature — that the bill currently at issue (and ready for second reading today in the Senate) would phase in a reduction from 5 percent to 4 percent starting in mid-2018 and then to 3 percent in mid-2019.

This morning, Murray Energy spokesman Gary Broadbent had this statement about the current bill:

The legislation introduced yesterday is very much needed. Indeed, all of the proceeds from the coal severance tax reduction will go directly to our electric utility customers, through the language of our coal sales contracts, and none of it to any coal company. This will allow the jobs of West Virginia coal miners to be more competitive against coal from other states and against the increased use of natural gas to generate electricity.

The folks over at the West Virginia Center for Budget and Policy took a hard look at the Coal Association’s report on cutting the severance tax, and concluded, among other things:

There’s little evidence to support a severance tax cut for coal as a tool to increase production and employment. Overall, the state has little ability to influence the forces affecting the coal industry, be they competition from natural gas, environmental regulations, productivity, or transportation issues. The numbers in the Coal Association’s report are entirely unrealistic, which is probably why, despite their report, they don’t deny that a severance tax cut probably won’t help.

Continue reading…

Who really runs West Virginia?

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FILE- In this Oct. 6, 2015, file photo, Superintendent Jackie Ratliff, a coal miner, holds coal running through a processing plant in Welch, W.Va. For the long-suffering communities that depend on coal, a recent Supreme Court ruling temporarily blocking greenhouse gas reductions was seen as a rare victory. But coal country residents say the reprieve may only be temporary as utilities turn away from coal generation and production continues to slide. (AP Photo/David Goldman, File)

The talk of the town here in Charleston remains out ongoing legislative session, and there’s rightfully a lot of talk about some of the initiatives — right to work, hating gay people, etc. — that the new Republican majority seems to think are more important than the current budget crisis and the real long-term challenges facing our state.

But I’ve written before about how West Virginia’s public policies aren’t really governed by Democrats or Republicans. That’s not who has been running our state of all these years.

If you don’t believe me, I would encourage you to consider a few happenings up at the statehouse these last few days.

First look at the vote on SB508, the bill to protect oil and gas drillers from certain kinds of lawsuits by residents who think their new neighbors aren’t so much fun after all. It passed 20-12, with support from some Democrats — like Kanawha County Senator Corey Palumbo, who seems surprisingly irony-impaired about the whole thing.

Second — and even more interestingly — look at the vote on SB565, the legislation to weaken the state Department of Environmental Protection permitting of natural gas drilling.  DEP Secretary Randy Huffman — hardly an enemy of the natural gas industry — doesn’t think this bill is a good idea.  But only one Democrat — Sen. Jeff Kessler — voted against it.

Some Democratic leaders would like to make it sound like they are with the surface landowners, citing concerns about the “forced pooling” legislation.  So why did SB508 get its share of “no” votes, but SB565 face opposition only from Sen. Kessler?

Well, that’s because the trial lawyers are against SB508 and have generated attention and opposition. But SB565 is arguably more important to surface landowners — it’s aimed at putting permits in place that would prevent damage and nuisance for residents before they occur, not just protecting the right to sue after it happens.

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So, is Don Blankenship ‘hardly a criminal’?

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Mine Explosion Congress

As the public tries to understand how six former Freedom Industries officials received a total of 60 days in jail for contaminating the drinking water for 300,000 people (see here and here for some of my efforts at explaining), some folks have naturally turned their attention to the upcoming sentencing in another of former U.S. Attorney Booth Goodwin’s major white-collar criminal cases

It’s hard not to wonder now whether former Massey Energy CEO Don Blankenship — to borrow a phrase that U.S. District Judge Thomas E. Johnston has now made famous — is “hardly a criminal.”

Like former Freedom officials Gary Southern, Dennis Farrell, William Tis, Charles Herzing, Michael Burdette and Robert Reynolds, Blankenship stands guilty of a crime that the law books list as a “misdemeanor.” A minor offense. A lesser crime (for more on whether crimes that put coal miner safety and health at risk deserve to be felonies, read this).

So when U.S. District Judge Irene Berger sentences Blankenship on April 6 — the day after the sixth anniversary of the Upper Big Branch Mine Disaster — will she let him off with what Blankenship’s critics (and certainly the families of the 29 miners who died at UBB) would consider a slap on the wrist?

Well, it’s true that Judge Berger’s hands are in some ways tied. Congress has made willfully violating a federal mine safety and health standard punishable by only up to one year in prison. And because Blankenship’s jury found him guilty only of conspiracy to willfully violate such standards, his conspiracy crime — normally a felony — is punishable with a maximum of one year in prison. Moreover, the Blankenship jury found him not guilty of the other, felony charges brought against him.

And while it’s true that Judge Berger has already sent four former Massey officials to prison for not insignificant periods of time, those four individuals (former Massey miner Thomas Harrah, UBB security chief Hughie Elbert Stover, UBB mine superintendent Gary May and former Massey unit president David Hughart) all were convicted by a jury or pleaded guilty to felony offenses.

Still, there some significant differences between the Blankenship and the Freedom cases, and they are worth understanding if you’re wondering how the next big sentencing in federal court here in Charleston might turn out. I’ve looked into this a little bit in the last day or so, and I asked Assistant U.S. Attorney Steve Ruby and defense lawyer Bill Taylor for their thoughts. I haven’t heard back from Mr. Taylor, but I’ll share some of AUSA Ruby’s comments below.

First, Blankenship was found guilty by the jury of conspiracy to willfully violate mandatory mine safety and health violations. This is quite different from the negligence and strict liability crimes involved in the water pollution cases against Freedom officials. As Ruby explained:

As you point out, Blankenship was convicted of conspiring to commit willful mine safety violations. The jury also found that his participation in the conspiracy was willful — a second level of willful misconduct, beyond the willfulness of the violations themselves. Willfulness is the highest standard of criminal intent that exists in the law. The difference between the willfulness of Blankenship’s actions, on the one hand, and the negligence and strict liability involved [in] the Freedom convictions, on the other, does distinguish the cases and would weigh in favor of a more severe sentence here.

Second, the federal government has already indicated in a court filing that it believes the advisory guideline sentencing range for Blankenship is 10 to 16 months (generally speaking, when a guidelines calculation produces a sentence which, like this one, ranges above the statutory maximum, that maximum becomes the guidelines range). Prosecutors indicated they believe there are factors that could push the guidelines range even higher, but they won’t yet explain their thinking on that. Ruby said:

We believe that the guidelines range ultimately could be some months higher than the 10- to 16-month range we discussed in our filing, but any difference would likely be a matter only of months, not years. We will decline at this time to discuss the specific enhancement that might increase the range. Given that the minimum range should be 10 to 16 months and the statutory maximum, unfortunately, is a year, we would not expect any difference to have much practical impact.

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Almost level: Study details how mining flattens W.Va.

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MountaintopMiningSlope

The hillside slope of West Virginia’s Headwaters Twentymile Creek watershed pre- and post-mining, calculated from elevation maps. Photo provided by Duke University.

There’s an important new study out from the folks at Duke University that provides some fascinating new calculations of the impacts of mountaintop removal on West Virginia’s coalfield environment.

Here’s the summary abstract:

Land use impacts are commonly quantified and compared using 2D maps, limiting the scale of their reported impacts to surface area estimates. Yet, nearly all land use involves disturbances below the land surface. Incorporating this third dimension into our estimates of land use impact is especially important when examining the impacts of mining. Mountaintop mining is the most common form of coal mining in the Central Appalachian ecoregion. Previous estimates suggest that active, reclaimed, or abandoned mountaintop mines cover ∼7% of Central Appalachia. While this is double the areal extent of development in the ecoregion (estimated to occupy <3% of the land area), the impacts are far more extensive than areal estimates alone can convey as the impacts of mines extend 10s to 100s of meters below the current land surface. Here, we provide the first estimates for the total volumetric and topographic disturbance associated with mining in an 11 500 km2 region of southern West Virginia. We find that the cutting of ridges and filling of valleys has lowered the median slope of mined landscapes in the region by nearly 10 degrees while increasing their average elevation by 3 m as a result of expansive valley filling. We estimate that in southern West Virginia, more than 6.4km3 of bedrock has been broken apart and deposited into 1544 headwater valley fills. We used NPDES monitoring datatsets available for 91 of these valley fills to explore whether fill characteristics could explain variation in the pH or selenium concentrations reported for streams draining these fills. We found that the volume of overburden in individual valley fills correlates with stream pH and selenium concentration, and suggest that a three-dimensional assessment of mountaintop mining impacts is necessary to predict both the severity and the longevity of the resulting environmental impacts.

In a press release from Duke, lead author Matt Ross said:

There hasn’t been a large-scale assessment of just the simple full topographic impact of mountaintop mining, which occupies more than 10 percent of the land in the region we studied. [We found] the impact is deep and extensive. It is locally large and more wide-ranging than other forms of mining.

Another of the authors, biology professor Emily Bernhardt, explained:

We tend to measure the impact of human activity based on the area it affects on a map, but mountaintop mining is penetrating much more deeply into the earth than other land use in the region like forestry, agriculture or urbanization. The depth of these impacts is changing the way the geology, water, and vegetation interact in fundamental ways that are likely to persist far longer than other forms of land use.

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Head in the snow: Why W.Va. doesn’t move forward

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Utility trucks head west bound on I64 crossing the St. Albans/Nitro bridge, in St. Albans, W.V., Saturday, Jan. 23, 2016. (Tom Hindman /Charleston Gazette-Mail via AP) MANDATORY CREDIT

Utility trucks head west bound on I64 crossing the St. Albans/Nitro bridge, in St. Albans, W.V., Saturday, Jan. 23, 2016. Photo by Tom Hindman.

When we last left the West Virginia Legislature, this was the sad report from The Associated Press:

phillips_rupertAs the snowstorm approached, a West Virginia delegate handed out sunscreen to his colleagues in an attempt to ridicule global warming.

Democratic Delegate Rupie Phillips passed around the bottles of sunscreen Thursday.

The lawmaker from coal-producing Logan County told his colleagues on the House floor, “I worry about you. You’ve got global warming going on. It’s not cold outside. It’s in your mind.”

Phillips said he was going to get everyone a pair of Maui Jim sunglasses, but they are “a little expensive.”

Seriously?

It’s hard to know where to start with this kind of silly stuff. Do we engage with it, and show the science that indicates, just for example that big blizzards in winter don’t disprove global warming and that climate change can actually make East Coast blizzards worse? Or do we ignore it, and hope it goes away?

The Beckley paper decided to take it on, with a very strong editorial that explained how we ignore science at our own risk:

It is clear Delegate Phillips is ignoring facts. Even the kids know that coal, which leaves a heavy carbon footprint in its wake, is a major contributor to global warming. Coal is a fossil fuel just like natural gas. When it is burned, it releases carbon dioxide into the environment. There, it helps trap heat and moisture in our little dome of life. It’s called the greenhouse effect — a pretty simple concept to grasp for anyone paying attention. And so, it gets hotter here on Earth and we get more extreme weather events. Even the oceans are warming up. It is undeniable. It is science. It has been researched. It is a fact. It is the truth.

But forget all of that. Forget the mountains of research. Forget all of the climate scientists around the world who have poured their intellectual curiosity into their work. According to Phillips, one winter weekend storm was all the evidence we needed.

 

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U.S. records 2nd and 3rd coal deaths of 2016

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Mine Explosion

My apologies for not following up on this sooner, but here’s the sad news reported out of western Pennsylvania earlier this week:

A West Virginia man is dead after a mining accident in southwestern Pennsylvania.

Officials with the Morgantown, West Virginia-based Mepco say 31-year-old Jeremy Neice was fatally injured Saturday evening near Mount Morris, about 50 miles south of Pittsburgh.

Green County emergency authorities say the Danville, West Virginia, man was in an accident at about 6 p.m.

Mine officials say they have suspended operations at the mine and that federal and state mine safety agencies have been notified. They say the company is “deeply saddened” by Neice’s loss.

The accident comes about six months after the state Department of Environmental Protection cited Mepco for another miner’s death at the same mine.

The U.S. Mine Safety and Health Administration said of the recent incident:

A 31-year-old miner was fatality injured on January 16 when a fall of material pinned the victim to the mine floor. First responders freed the victim who was then transported to the surface area of the mine and traveled by ambulance to Ruby Memorial Hospital.

This is the 2nd U.S. coal-mining death in 2016, according to MSHA’s count.

Updated: There was a 3rd coal-mining death also reported in western Kentucky. It doesn’t appear to have been added to MSHA’ s list yet, but here’s what MSHA has to say at this point:

A 36-year-old miner was fatality injured on Jan.19, 2016, when he became pinned between a continuous mining machine and the coal rib.  The continuous miner operator was transported from the mine to the Baptist Hospital in Madisonville Kentucky where he was pronounced dead.

Obama to continue push for coalfield aid

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President Barack Obama speaks at a town hall styled event at McKinley Senior High School in Baton Rouge, La., Thursday, Jan. 14, 2016. (AP Photo/Gerald Herbert)

There’s big news coming today about the federal coal-leasing program, with an Interior Department press conference planned later this morning and this report out from The Wall Street Journal:

The Obama administration plans to announce Friday that it is going to change the way the federal government handles coal leases on public lands, the latest step in President Barack Obama’s plan to address climate change, according to a congressional aide.

The administration is also expected to put in place a moratorium on at least some new coal leasing until the Interior Department conducts a broad environmental review, which could include coal mining’s impact on climate change, wildlife and other environmental issues. An Interior Department representative didn’t immediately respond to a request for comment.

As the Journal noted, this is following up on President Obama’s comments earlier this week in his final State of the Union address:

Now we’ve got to accelerate the transition away from dirty energy.  Rather than subsidize the past, we should invest in the future – especially in communities that rely on fossil fuels.  That’s why I’m going to push to change the way we manage our oil and coal resources, so that they better reflect the costs they impose on taxpayers and our planet.

At the same time, the administration is also making clear that it plans to continue a major push to help coalfield communities in Appalachia that are struggling through the industry’s continuing downturn.  White House officials told me this week that the upcoming budget proposal for next financial year would include more funding for the Power Plus Plan.

Readers will recall that last year, President Obama included significant funding in his budget proposal to help coalfield communities, including $1 billion in new spending over five years to clean up abandoned strip mines, additional funding for research on carbon capture technology for power plants, and nearly $4 billion over 10 yeas to protect the health and retirement benefits of retired coal miners.

Congress came through with some money for some of these projects, such as a $90 million pilot project for abandoned mine cleanups, $50 million for the Appalachian Regional Commission, and $15 million to the Economic Development Administration for projects and grants under Power Plus.

While the full budget proposal won’t be public until next month, White House officials say that it will include proposing to continue the additional money for the Appalachian Regional Commission, along with more money for other components of the administration’s coalfield aid plan.

“We expect to come out of the gate pretty strong,” one White House official told me. “We are going to be making this a priority for us.”

Continue reading…

Tomblin: Time to reinvest in W.Va. coalfields

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State of the StateTonight’s State of the State address from West Virginia Gov. Earl Ray Tomblin contained what were certainly the most straightforward comments from the governor on the state of the state’s coal industry:

… We cannot ignore the unprecedented shift that has taken place in our state and our nation. Forces beyond our control have severely damaged our coal industry, and even the most optimistic among us realize it is unlikely coal will ever reach production levels of the past.

Pretty strong stuff, especially for Governor Tomblin. Right before that, though, he had said this:

Despite the difficult times we find ourselves in, West Virginia remains the fourth largest producer of electricity in the country, and I believe our coal industry will continue to support our families well into the future.

It’s true that the coal industry in West Virginia isn’t going to disappear overnight or anytime soon — but it’s still a problem that political leaders feel they need to balance any talk about the downward spiral with hope that it really won’t be quite all that bad.

The governor went on to say more about coal and about mining communities:

For generations, our miners unearthed the coal used to produce the low-cost energy that fueled this country’s Industrial Revolution – one that remains unmatched anywhere in the world. This nation owes these West Virginians a debt of gratitude and we are ready to cash in on that substantial IOU.

And he outlined several proposals for helping struggling coal communities.

First, there was this:

This fall, we submitted an application to the National Disaster Resilience Competition seeking more than $140 million in funding from the United States Department of Housing and Urban Development. This competition has the potential to help six counties in our southern coalfields adjust, adapt and advance their communities.

If we’re successful, these federal funds will help us rebuild aging infrastructure, promote land use planning and hazard reduction efforts and stimulate housing and economic development in areas outside of the region’s floodplains.

And then there was the big one:

We are also proposing to develop the largest industrial site in West Virginia history at the former Hobet surface mine in Boone and Lincoln counties. With 12,000 acres located just off Corridor G, this site is large enough to fit virtually every major economic development project in recent history – including Toyota, Procter & Gamble, Gestamp,  Macy’s, Amazon and more – with thousands of acres left over.

We know this is a major undertaking, and with the help of local landowners Marshall University, West Virginia University and the Virginia Conservation Legacy Fund,  we are working together to find new uses for this site while mining activity continues.

Continue reading…

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Tomblin

Photo by Tom Hindman

In a few hours, we’ll hear from Gov. Earl Ray Tomblin about his views on the State of the State and his plans for dealing with a budget deficit and for his final year as governor.

Already, though, the governor and his staff  have done a lot to telegraph a bit of what he may say regarding the coal industry. In an interview with the Gazette-Mail’s Phil Kabler for Sunday’s paper, for example, there was this:

Tomblin hopes a myriad of job training opportunities directed at southern West Virginia, particularly for laid-off miners and their families, will eventually lead to a revitalization of that hard-hit region.

“The mining jobs may not be returning, and you can always go back to that if they do, but it’s good to have a little college training under your belt,” he said. “Coal in southern West Virginia has had highs and lows for years, and it seems to be hit particularly hard this time.”

And then in today’s paper, there was this from communications director Chris Stadelman:

He has some exciting new things, not only in developing our workforce, but in diversifying our economy.

It will obviously be encouraging to hear Governor Tomblin talking more directly and — perhaps, forcefully — about the need to diversify coalfield economies here. But two things remain bothersome about the context in which he’s doing it.

First, there’s this business about how “the mining jobs may not be returning” and how “you can always go back to that if they do”. I’m not aware of any forecasts that suggest any grand resurgence of the coal industry in Southern West Virginia. It’s popular among the industry’s political supporters to suggest all manner of actions by elected officials — and the end of the Obama administration — might make that happen. But Governor Tomblin isn’t doing anybody in the coalfields any favors by tipping his rhetoric even a little bit in that direction.

Second, there’s this idea that’s been reported several times about how the state’s current budget problems were somehow unanticipated. When former Gov. Joe Manchin was winning political points with business leaders by cutting their taxes, there were those who warned this would happen. When forecast after forecast from coal experts projected declining production in Southern West Virginia, there were those who warned this would happen. And even the current low price of natural gas was something that wasn’t entirely unanticipated. State officials knew it was projected to drop — it just dropped even more than they thought.

Maybe the governor’s rhetoric and context will change dramatically tonight. After all, former Sens. Robert C. Byrd and Jay Rockefeller both made strong statements about West Virginia’s relationship to coal and the need to reassess the industry late in their careers. Maybe Governor Tomblin is going to call on his fellow West Virginians to “embrace the future.”

Governor Tomblin, though, faces a Republican-controlled Legislature that is itching for fights with Democrats and unions about worn-out issues like right-to-work and prevailing wage, and even about who should be sitting in the state Senate. Coal industry lobbyists, meanwhile, are considering a push to lower mining taxes.

It doesn’t take a political genius to know that a ton of time over the next 60 days will be spent on political fights that don’t get the state anywhere.

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President Barack Obama delivers his State of the Union address before a joint session of Congress on Capitol Hill in Washington, Tuesday, Jan. 12, 2016. (AP Photo/Evan Vucci, Pool)

President Barack Obama delivers his State of the Union address before a joint session of Congress on Capitol Hill in Washington, Tuesday, Jan. 12, 2016. (AP Photo/Evan Vucci, Pool)

It seems like a long time ago that if President Obama would deliver a State of the Union address or other major speech that touched on energy there would be at least some vague mention of “clean coal.”

Last night, well … not so much.

Instead, President Obama’s discussion of such things last night in his final State of the Union went something like this:

Seven years ago, we made the single biggest investment in clean energy in our history.  Here are the results.  In fields from Iowa to Texas, wind power is now cheaper than dirtier, conventional power.  On rooftops from Arizona to New York, solar is saving Americans tens of millions of dollars a year on their energy bills, and employs more Americans than coal – in jobs that pay better than average.  We’re taking steps to give homeowners the freedom to generate and store their own energy – something environmentalists and Tea Partiers have teamed up to support.  Meanwhile, we’ve cut our imports of foreign oil by nearly 60 percent, and cut carbon pollution more than any other country on Earth.

Now, I don’t know about this business where solar “employs more Americans than coal.” The numbers touted by folks like The Solar Foundation seem to include a pretty broad brush, whereas the figures for the coal industry are a smaller subset that focuses more strictly on miners — not on things like manufacturing, sales and distribution or “project development.” I’m not sure it’s a completely fair comparison. This has been a popular comparison for the wind industry as well, and I’ve pointed out before how that bothered me as well.

New York Times columnist Paul Krugman dismisses questions about these kinds of comparisons:

… While you might want to quibble with specific numbers, the boom in renewable energy is very real, as are the surging number of jobs in things like solar panel installation. I can’t imagine any calculation under which the number of green jobs added doesn’t exceed the loss in coal mining, which was already a shadow of its former self before Obama took office.

There’s no question that the boom in renewable energy is real. But there is also no question that coal’s downturn is hurting many families in the coalfields and it’s also hammering the budgets of coal-producing states like West Virginia.

Continue reading…

Industry seeks to stall black lung protections

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blacklungminer2

The latest news on the black lung issue is this:

Coal companies are asking an appeals court to block implementation of the second phase of the U.S. Mine Safety and Health Administration plan for addressing coal miners’ exposure to respirable dust, the cause of black lung disease.

Parties such as Murray Energy Corp., the National Mining Association, Walter Energy Inc. and the Alabama Coal Association are seeking to block implementation of the remainder of the rule ahead of its Feb. 1 rollout date. The rule was unveiled in April 2014 and aims to lower occurrence of black lung, a disease that has been a contributing factor in the death of 76,000 coal miners since 1968.

As that report, from SNL Financial’s Taylor Kuykendall, continues:

The industry argues the rule was unlawfully promulgated without the participation of the National Institute for Occupation Safety and Health. Already, the filing states, the rule has imposed substantial burdens and costs in the form of re-engineering mines, purchasing expensive equipment, training and hiring personnel and new government certifications.

“These costs have hit a coal industry substantially weakened financially even compared to the already-weakened state it was in when the dust rule was promulgated in 2014,” the filing states.

You can read the industry court filing here, and there’s another media report on the issue out in the Herald-Leader:

The coal industry is seeking to forestall new standards aimed at cutting miners’ exposure to breathable dust that can cause deadly black lung disease.

Feb. 1 is the start date for the second phase of the rule. It would require miners to wear continuous personal monitors to check their exposure to dust, and companies would have to do more frequent sampling to check for compliance with dust limits.

Will W.Va. look for some other baskets?

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fog1_I130113215421

Photo by Kenny Kemp

There’s a new white paper out from Downstream Strategies that summarizes some of their previous findings and recommendations (see here, here, here and here) about the place West Virginia coalfield residents find themselves in.

It’s called, “All of our eggs in one basket?” and among its key messages are:

Among the key messages:

For years, we have known that Central Appalachian coal production was going to decrease dramatically. And it has.

Coal production is falling fast in southern West Virginia, but staying stable in northern West Virginia. This is significantly impacting coal-dependent communities in southern West Virginia.

This is a statewide issue. Severance tax revenues from the coal industry are declining, and increased revenues from the natural gas industry have not fully made up the difference.

The General Revenue Fund relies heavily on severance tax revenues.

Recent budgets have overestimated expected revenues from severance taxes, including the first three months of fiscal year 2016.

Their conclusion:

For years, we have known that coal production was likely to drop significantly in southern West Virginia, and that coal
production will likely continue to decline in the future. Now that these projections are coming true, the state is grappling
with fewer jobs, bankrupt companies, and declining severance tax revenues.

Together, these present unprecedented challenges not just for southern West Virginia counties, but also for the state as a
whole.

New approaches are needed.