Welcome to a review of King Coal in the news during the week of May 10 - May 16, 2010. Come on in and sit a spell. Take a look at the Good, Bad, and Ugly when it comes to the dirtiest of dirty energy. Stop by the Activist Corner for how to lend your voice to the demise of King Coal.
This was a good week with the criminal case against Massey Energy building, regulators doing their job, and many legal victories against expansion of coal mining and coal power. These victories against King Coal come as NASA reports record high global temperatures during the first four months of the year.
Sen. Robert Byrd is on fire:
“Last month, a horrific explosion at the Upper Big Branch mine took the lives of 29 West Virginia coal miners,” said Byrd. “We are learning that this was a disaster that should never have happened. That mine had been cited for hundreds of safety violations – citations that were appealed and ignored, and I dare say, were scoffed and laughed at by the guilty parties.”
>>>>> THE GOOD
Massey moves closer to perp walk
The U.S. Attorney for the Southern District of West Virginia, Charles Miller, sent a letter requesting the Mine Safety and Health Administration petition the court to delay civil litigation against Massey-subsidy Performance Coal until the criminal probe is completed. Here is an excerpt:
The purpose of this letter is to confirm that this office is currently conducting a criminal investigation of violations that have occurred at UBB, including those violations at issue in the cases identified in Attachment A to this letter. Given the ongoing criminal investigation, we request that MSHA petition the designated Administrative Law Judge for a stay of the pending civil actions pertaining to UBB until the criminal matters are resolved, as well as any other cases that subsequently docketed.
A portion of the criminal investigation involves whether Performance Coal and its directors, officers, and agents engaged in willful criminal activity at UBB.
It goes on to cite statutes for the violations and precedents for delaying civil litigation until a criminal investigation is complete. The pending cases against Performance Coal date back to 2007. Not being a lawyer, I cannot "read between lines" for what the letter portends in terms of possible severity of charges and time frame. There is no question a criminal investigation is underway, focuses on the Upper Big Branch mine, and the feds want the first crack at the Massey subsidy. For more on the investigation, see stories here and here.
Labor Secretary Hilda Solis also made the following comment in her editorial published in the Charleston Gazette on Sunday:
I welcome the ongoing involvement of the FBI, the U.S Attorney’s Office and the Department of Justice in this matter, and will make sure that our efforts do not impede their ability to investigate and prosecute any criminal wrongdoing. While we value transparency, I will not allow the evidence gained during our investigation to taint a potential grand jury process, telegraph to possible criminal defendants what other witnesses are saying, or provide potential criminal defendants with a roadmap to avoid prosecution, evade conviction and escape justice.
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The Mine Safety and Health Administration does its job
The Mine Safety and Health Administration (MSHA) finally moved beyond inspections to enforcement. As noted in the quote from Robert Byrd, coal mining companies routinely ignore citations and laugh off fines. Maybe the laughter will soon be replaced by gnashing of teeth.
"On Tuesday, MSHA issued an order closing the Harris No. 1 mine in Boone County, West Virginia," the spokesman said. "The order was issued because the mine's ventilation system was not functioning as designed."
Leslie Fitzwater, spokeswoman for the West Virginia Office of Miners' Health, Safety and Training, said the company had been warned earlier about low oxygen levels in parts of the mine during a routine MSHA investigation, but the problem had not fixed when MSHA officials returned to the mine on Tuesday.
Reuters
The fact that closures for noncompliance for citations requiring immediate remediation have been so rare as to be newsworthy is more evidence how dysfunctional the regulatory process has become.
The closure of the mine in Boone County, West Virginia was followed by reports that the MSHA is considering another closure, this time for a scofflaw mine in Virginia run by Massey. Like the Upper Big Branch mine, Tiller No. 1 has been cited for numerous violations with no improvement in its record. In October, mine operators were notified by MSHA that the mine's noncompliance with safety regulations triggered eligibility for "pattern of violations" closure. Inspections during 2010 have shown no improvement and closure is likely.
West Virginia Public Broadcasting reported this morning that a Massey-owned underground coal mine in southwest Virginia could face the rare pattern of violations status. The Tiller No. 1 Mine has racked up 82 safety violations this year, according to MSHA. Forty of those were deemed “significant and substantial,” indicating that they are “reasonably likely to result in a reasonably serious injury or illness.”
A "pattern of violations" closure would be only the second since the passage of the Mine Safety Act was passed in 1977. Long, long, long overdue.
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Stockholder revolt at Massey
A coalition of state and municipal pension funds that own over 1.3 million shares of Massey Energy stock moved to block reappointment for three directors to the Safety, Environmental and Public Policy Committee (SEPPC). The coalition includes the state systems of North Carolina, California, Connecticut, Illinois, Maryland, Oregon, Pennsylvania and New York, along with the New York City Employees Retirement System.
The coalition is attempting to force a no-confidence vote for the directors that oversaw company safety during the past year of record safety citations, Upper Big Branch mine disaster, and possible criminal charges.
In the letter to the board, the coalition argues against reappointment of the three directors to SEPPC on the following grounds:
Given Massey’s repeated and serious safety violations as discussed above, we believe SEPPC Directors Phillips, Gabrys, and Moore have failed to carry out their roles and responsibilities under SEPPC. We also believe that Massey has tried to deflect criticism by emphasizing less relevant metrics such as Non-Fatal Days Lost (“NFDL”), a statistic cited by Lead Director Inman in his April 28 letter to us. NFDL does not capture other safety violations such as S&S violations or withdrawal orders. We also believe that Lead Director Inman’s
reliance on the company-wide NFDL rate overlooks the significant NFDL rate for Upper Big Branch that was more than three times the NFDL rate for the Company as a whole in 2008 and 2009. Because SEPPC responsibilities and duties include reviewing safety risks, establishing goals for safety enhancements, and reasonably informing the Board about compliance with all mine safety laws, we believe these three Directors failed to manage the many safety risks the Company faces.
The drop in stock price, liabilities in the Upper Big Branch disaster, and downgrading of company ratings because of regulatory violations affecting production have dramatically hurt the financial performance of the pension funds.
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Senator Casey moves to block Massey mining permits in Pennsylvania
Massey production has taken a beating thanks to Upper Big Branch mine disaster and safety violations at its other mines. However, the company still has enough cash to buy out bankrupt mines in other states, include an operation in Pennsylvania. Sen. Bob Casey petitioned the Environmental Protection Agency to deny permits to reopen a mine in the state with a poor environmental record (massive discharge of acid mine wastes).
Casey on Tuesday sent a letter to state Department of Environmental Protection Secretary John Hanger asking him to set aside any permit applications from Massey until the U.S. Department of Labor's Mine Safety and Health Administration completes its investigation into the West Virginia catastrophe.
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Court battles and victories
Montana: A coalition of conservation and land owner groups filed suit to stop the Otter Creek mine from becoming the largest strip mine in the country. Gov. Brian Schweitzer's lobbying efforts on behalf of Arch Coal have not been his finest moments of public service.
The lawsuit argues that the board did not consider the effect of coal mining on water and air quality, wildlife, cultural resources, or farms and ranches. The groups argue Otter Creek could become the biggest mine in the country, contribute to area pollution, and ruin the landscape.
"The Land Board has no business selling off coal mining rights to out-of-state developers without first looking into what it might mean for our land and groundwater," Mark Fix, an area rancher with Northern Plains, said in a statement. "This mine might be good for China, but it's not good for Montana."
ABC News
Wisconsin: The Sierra Club won an appeals court suit to force the Department of Natural Resources to enforce the Clean Air Act in emissions standards for a large coal-fired power plant.
A three-judge panel of the District 4 Court of Appeals agreed with the Sierra Club that the state Department of Natural Resources erred when it did not require the smokestack for the plant's main boiler to follow a federal visibility standard for pollutants on its air pollution permit.
Arkansas: A coalition of groups successfully appealed to the state supreme court to block permits for a new coal-fired power plant. The high court ruled that the Public Service Commission improperly issued the permits without conducting public hearings.
Justices unanimously reversed the decision by the Public Service Commission to grant a permit for the Southwestern Electric Power Co.'s John R. Turk Plant in southwest Arkansas. The ruling sent the case back to the PSC. The decision, which upheld a similar ruling by the state appeals court last year, found that regulators did not conduct a proper permit hearing.
Georgia: A coalition of groups filed to suit block permits for two new coal-fired plants, Plant Washington in Sandersville and Longleaf Energy Station in Early County. The suits were filed after the Environmental Protection Division issued air pollution permits that do not conform to the Clean Water Act and Clean Air Act.
Attorneys from GreenLaw and the Southern Environmental Law Center (SELC), acting on behalf of seven citizens’ groups, are fighting the proposed plants with claims against the water and air pollution permits proposed for Plant Washington, to be built in Sandersville, and against the air pollution permit for Longleaf Energy Station, to be built in Early County. The groups said they are acting in response to an "unprecedented wave" of permits issued by the state Environmental Protection Division (EPD) in April.
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>>>>> THE BAD
Another week, another mining disaster
This is 6th straight week of a major mine accident with fatalities. Last week, two explosions in a coal mine in Russia killed 90 miners. This week an explosion in a coal mine in China killed 32 miners. The Associated Press has just reported a massive explosion in coal mine in Turkey with 32 miners currently listed as missing.
This string of deadly accidents seems to strain the bounds of statistical chance. With supplies of metallurgic coal low, and demand and prices high, it certainly looks like safety is being sacrificed for production all over the world.
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How dare they protest!
In the aftermath of the tragic accident at a Russian coal mine that killed 90 miners, protestors took to the streets in the area around the mine. Putin and Medvedev were not pleased and ordered a crackdown, producing clashes with protestors.
That protest led to direct intervention by Prime Minister Vladimir Putin. Shortly afterwards, President Dmitry Medvedev warned regional governors they would be sacked if they were unable to control such protests.
Russia's Itar-Tass news agency said Tuleyev met Raspadskaya miners on Saturday. He said workers would continue to be paid while the mine was closed, and that a full investigation would be carried out into the cause of the accident.
Separate footage from Mezhdurechensk's Kvant television showed hundreds of protesters standing outside a cultural center on Friday demanding improved wages and working conditions.
"The main thing is, none of the managers came to ask for forgiveness, not one of them," a protester told the broadcaster.
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The obvious questions about the ash holes
The announcement last week by the Environmental Protection Agency (EPA) of two possible approaches to regulate coal combustion waste spawned hundreds of articles across the country discussing the implications. The coverage has consistently made three critical errors.
First, in discussing the sites that will need to be closed, reporters seem to be oblivious to the implication. Only unlined storage sites would have to be closed if the weaker regulation is enacted. Groundwater contamination from unlined coal ash impoundments is a virtual certainty. The number of these hazardous sites should be viewed with alarm if the reporters had done the background research.
Second, the articles falsely imply that no contamination has resulted from ash impoundments, suggesting the patchwork of state regulations and lax monitoring of coal ash has been effective. The opposite is true as there have over 100 sites with high levels of arsenic and other heavy metals in the soil and groundwater near impoundments.
Finally, the reporters suggest that concern over the safety of coal ash impoundments began with the billion gallon spill of toxic coal ash wastes from an impoundment in Kingston, Tennessee in late 2008. In fact, environmental organizations have been pressing for tighter regulation for almost two decades.
This article about the coal ash sites in Ohio illustrates all three critical errors.
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>>>>> THE UGLY
Tampering with records at the Upper Big Branch mine
There have been rumors of record tampering at the Massey Upper Big Branch mine. Those rumors have now been confirmed by MSHA investigators. The records in question concern ventilation fans central to the investigation of what is believed to have been an explosion due to methane and coal dust.
MSHA coal administrator Kevin Stricklin confirmed Friday that agency investigators found a page missing from the book where daily ventilation fan examinations were recorded. “We do have a page that was ripped out. It’s something we’re going to look into.”
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Crime pays at Massey
On paper, the situation looks bleak for Massey. The company is under the gun by the feds for criminal violations at its Upper Big Branch mine, which would set the stage for civil litigation stemming from the accident that killed 29 miners. Production is down because of the accident and safety violations at other Massey mines. Institutional stockholders are staging a revolt to force out three directors. There is growing chorus of criticism directed at the shenanigans of CEO Don Blankenship. Massey stock has lost over 30% of its value since early April.
Before you count this monster out, take a look at what Massey was able to do last week despite all the obstacles.
a) Expanded operations at mines in Virginia and Kentucky
b) Purchased a bankrupt mine in Pennsylvania
c) Start buying back large amount of stock
That is an impressive liquidity for a company under so many financial and legal pressures.
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Shelley Capito and friends demand coal companies be given the right to destroy water quality in Appalachia
Here is how the worthless media covered the story:
The congresswoman and others are asking the U.S. Environmental Protection Agency to stop their attempt to add regulatory barriers coal permitting.
What Capito and fellow scum in Congress are fighting is the valley fill rule by the EPA that would enforce the Clean Water Act in permits for mountaintop removal mines. Thanks to non-existent enforcement, corporate monsters like Massey have been able to destroy more than 2000 miles of streams in Appalachia.
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>>>>> Tale of the Tape
Stock prices for all the major US coal companies were up for the week as Massey showed the first gain since March.
Company | % change for week |
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Arch Coal | +0.55 |
Consol Energy | +4.90 |
Massey Energy | +12.03 |
Peabody Energy | +2.20 |
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>>>>> Video Pick of the Week
A timely reminder of the poignant relationship between Don Blankenship of Massey and former WV Supreme Court Justice (now candidate for Congress) Spike Maynard.
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>>>>> Get To Know
There are many environmental and social justice groups fighting against King Coal. Their work in documenting the abuses and violations of the coal industry is nothing short of heroic. This week I want to highlight the Appalachian Center for the Economy and Enviroment
The Appalachian Center is a regional law and policy organization. The Center works together with individual citizens and grassroots citizens' groups to clarify, analyze and act on the environmental and economic issues that affect our communities. We carry out precedent-setting litigation strategically designed to protect the environment and the health of communities. We also conduct research and analysis, and advocate for a sustainable and just economy for the region.
The Center seeks fundamental changes in compliance, implementation and enforcement of major environmental laws in Central Appalachia. We seek to start the long process of replacing the shortsighted economic policies of the region with more sustainable and responsible policies. All of our court actions and policy initiatives are formulated to have long-term and systemic impacts.
>>>>> Activist Corner
1. Support the Appalachia Restoration Act
The Appalachia Restoration Act (S. 696) is a bill in the U.S. Senate which will sharply reduce mountaintop removal coal mining and protect clean drinking water for many of our nation's cities. It will protect the quality of life for Appalachian coalfield residents who face frequent catastrophic flooding and pollution or loss of drinking water as a result of mountaintop removal coal mining.
Contact your Senators to support the Appalachia Restoration Act
2. Urge EPA regulation of coal ash as a hazardous waste.
The OMB has successfully delayed regulation of coal ash by the EPA, giving industry more time and opportunity to lobby. It is time to encourage the Obama administration to respect the science and allow the EPA to protect public health.
Use this form from Earth Justice to provide feedback to President Obama: Earth Justice form
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