Author: Brittany Patterson

EPA Reaches Settlement With Koppers Inc. Over W.Va. And Pa. Facilities

A Pittsburgh-based chemical and materials company has agreed to pay nearly $1 million for failing to follow state and federal laws for preventing and responding to oil spills, under a settlement with the U.S. Environmental Protection Agency.

The proposed agreement, announced last week, addresses more than 30 violations at Koppers Inc. facilities in Follansbee and Green Spring, West Virginia, and Clairton, Pennsylvania.

Federal rules, including the Clean Water Act’s Spill Prevention, Control and Countermeasure and Facility Response Plan, require companies create, submit and keep up to date plans for mitigating the impacts of possible oil spills. A complaint filed in federal court said Koppers failed to prepare for the possibility of millions of gallons of oil flowing into nearby rivers.

The EPA said Koppers also failed to properly inspect tanks and other infrastructure in violation of state storage tank laws in West Virginia and Pennsylvania.

More than 12 million gallons of oil can be stored at Koppers’ Clairton facility, located 1,000 feet from the Monongahela River. The facility was shuttered in 2016, sold in 2018.

Dozens of tanks at the Follensbee plant, in West Virginia’s northern Panhandle, have the capacity to store more than 20 million gallons of oil. The plant is located about 150 feet from the Ohio River, a drinking water source for 5 million people. Koppers plans on closing the plant by the end of the year.

The complaint notes the most egregious violations occurred at the Follensbee facility, including “deficiencies in the facility’s secondary containment for spills, and inadequate structural integrity inspection and testing of aboveground tanks,” according to an EPA press release.

This most recent infraction is not the first time Koppers has been in trouble with the EPA for its Follensbee facility, located in Brooke County. In 2015, the company and agency reached a similar settlement agreement related to the facility’s oil tanks.

Under the proposed settlement, the company did not admit to the violations, but will take steps to come into compliance. Koppers will also pay $800,000 to the United States, $175,000 to West Virginia and $24,500 to Pennsylvania.

The public has 30 days to comment on the agreement.

Court Says Lawsuit Against W.Va. DEP Over Mine Reclamation Fund Can Proceed

A federal court has ruled that a lawsuit brought by environmental groups over West Virginia’s coal mine reclamation fund can continue.

In an order issued Friday, U.S. District Judge Robert Chambers dismissed a request by the West Virginia Department of Environmental Protection to toss the July lawsuit filed by environmental groups.

The three organizations — the Ohio Valley Environmental Coalition, West Virginia Highlands Conservancy and Sierra Club — argued the state agency violated federal mining laws when it failed to alert federal mine regulators it was putting more than 100 mining permits controlled by one company — ERP Environmental Fund— into a special receivership in order to avoid forfeiting the permits to the state.

The groups noted that the move, as well as recent bankruptcies of Murray Energy and Blackjewel Mining L.L.C., jeopardized already inadequate funds the state relies on to clean up coal mining operations when companies walk away. Under the Surface Mining Control and Reclamation Act, state regulators are required to inform the Office of Surface Mining, Reclamation and Enforcement, or OSMRE, when there are significant changes to the state’s coal mine cleanup program, including financial changes.

According to documents filed by the DEP earlier this year, the state’s Special Reclamation Fund would be “overwhelmed” if ERP’s permits were forfeited. The agency said the company has an estimated $115 million in bonds, but it would cost at least $230 million to remediate all of the company’s operations. The difference would fall to the reclamation fund.

According to a Jan. 9, 2020 report to the West Virginia Legislature, as of Sept. 30, 2019, the Special Reclamation Fund had just over $58 million in cash and investments. It is funded by a 12.9 cent tax per ton of coal mined in West Virginia.

State regulators asked the court to dismiss the suit for a myriad of reasons, all of which the court denied. In a statement, the Sierra Club said it expects the case to eventually go to trial.

Court Again Bars Mountain Valley Pipeline From Stream, River Construction

A federal appeals court has cemented a prohibition against construction of the Mountain Valley Pipeline across streams, rivers and wetlands.

The U.S. Court of Appeals for the Fourth Circuit on Monday issued the ruling that converted a temporary, administrative stay to a conventional stay. The construction moratorium will remain in place until the court decides a legal challenge brought by environmental groups over the pipeline’s reissued federal waterbody crossing permits.

The ruling came hours after the court heard oral arguments in the case.

Conservation groups, led by the Sierra Club and represented by Appalachian Mountain Advocates, asked the court to review the water crossing permits reissued by the U.S. Army Corps of Engineers in late September. The groups argued that the federal agency failed to ensure waterbody crossings, under the newly issued permits, don’t cause harm to any other species.

The original Army Corps approvals were tossed by a federal appeals court in 2018.

The Fourth Circuit last month granted an emergency order to temporarily stop construction.

The ruling on Monday marks yet another setback for the 303-mile natural gas pipeline from developer EQT, which has been plagued by legal challenges. The pipeline, which is about 90 percent completed, goes through northwestern West Virginia and southern Virginia.

In the Mountain State it crosses Wetzel, Harrison, Doddridge, Lewis, Braxton, Webster, Nicholas, Greenbrier, Fayette, Summers, and Monroe counties. The multi-billion dollar project would carry 2 billion cubic feet of natural gas from the Marcellus and Utica shale formations to markets on the East Coast.

Environmental opponents praised the decision.

“This decision will help ensure the pipeline doesn’t keep posing catastrophic threats to waterways that people and imperiled species depend on to survive,” said Jared Margolis, attorney at the Center for Biological Diversity, a nonprofit conservation group headquartered in Arizona.

In a separate lawsuit, environmental groups are also challenging the legality around two additional newly reissued federal permits that address the project’s impacts on endangered species.

Ex-Massey Energy CEO Draws Thousands of Votes For President In Closely Contested States

Former coal executive Don Blankenship, who went to prison for his role in the Upper Big Branch Mine disaster in West Virginia, drew about 55,000 votes Tuesday as a third-party candidate for president, including thousands of votes in closely contested states.

While not a significant amount in comparison to the more than 140 million Americans who cast a ballot in Tuesday’s record-breaking election, the Constitution Party nominee drew thousands of votes in Michigan and Wisconsin, two swing states that have been called for Democrat Joe Biden with razor thin margins.

In Michigan, Blankenship drew 7,301 votes, according to the New York Times. Just over 5,200 Wisconsinites cast their ballot for Blankenship. Biden won Wisconsin by roughly 20,000 votes.

The coal baron did not appear on the ballot in West Virginia, Kentucky or Ohio. However, according to the Constitution Party website, Blankenship was on the ballot in 21 states including some with tight races, such as Nevada, North Carolina and Florida.

Blankenship pitched himself as an alternative to the country’s two-party system. His platform billed him as a “third way.”

This was not Blankenship’s first foray into politics. In 2018, he lost a three-way Republican primary for a U.S. Senate seat in West Virginia.

Twenty-nine men died in the Upper Big Branch Mine explosion in April, 2010. Blankenship served a one-year prison sentence for conspiring to violate federal mine safety standards.

Earlier this year a federal judge denied his request to overturn the conviction.

Environmental Groups Ask Federal Court To Once Again Stop Construction Of The Mountain Valley Pipeline

Environmental organizations, led by local advocacy group Appalachian Voices, have once again asked a federal court to halt construction of the Mountain Valley Pipeline.

In a motion filed Monday in the U.S. Court of Appeals for the Fourth Circuit, the groups asked the court to stop construction of the 303-mile natural gas pipeline, which is more than 90 percent completed, while the federal bench sorts through the legality around two newly reissued federal permits.

The permits, reissued by the U.S. Fish and Wildlife Service in early September, include the Biological Opinion and Incidental Take Statement for the Mountain Valley Pipeline. The permits address concerns around how the project could impact endangered species.

In October 2019, the Fourth Circuit tossed the project’s Biological Opinion and halted the project following a similar lawsuit by environmental groups.

In the new motion, Appalachian Voices argues the agency did not consider all of the appropriate information before reissuing the approvals.

The project, from developer EQT, goes through northwestern West Virginia and southern Virginia. In the Mountain State it crosses Wetzel, Harrison, Doddridge, Lewis, Braxton, Webster, Nicholas, Greenbrier, Fayette, Summers, and Monroe Counties. The project has faced several court challenges in the past two years over state and federal permits on both sides of the border. The multi-billion dollar project would carry 2 billion cubic feet of natural gas from the Marcellus and Utica shale formations to markets on the East Coast.

In a separate lawsuit, environmental groups are also challenging a permit that allows the pipeline to cross streams and wetlands. The Fourth Circuit has temporarily blocked construction across waterways. Oral arguments are scheduled for Nov. 9.

Advocates Say Citizen Mining Complaint Process Weakened By Rule Change

Environmental and community advocates in Appalachian coal communities are concerned about a new federal rule, finalized this week, that is changing the process that allows citizens to file complaints about polluting coal mining operations.

The Department of the Interior’s Office of Surface Mining Reclamation and Enforcement said in a Tuesday press release that the changes to the 10-Day Notice policy would “streamline” the complaint process.

Under federal law and agency regulations, anyone can notify the agency about alleged mining violations. Under the original rule, the agency would share the complaint with state regulators. That kicked off a 10-day clock for the state to take action, either by forcing the company to fix the problem, or showing why action wasn’t necessary.

Under the new rule, the agency can informally contact state regulators before sending a 10-Day Notice. Officials said it would allow for more flexibility between state and federal investigations. Final language for the rule has not been made public.

“This rule restores [the Surface Mining Control and Reclamation Act] mandate of cooperative federalism, reduces duplicative red tape, and ensures we work alongside our state partners who are the primary enforcement authorities under the law,” Deputy Secretary of the Interior Kate MacGregor said in the release.

Environmental groups fear the changes weaken their ability to protect communities and the environment. In a statement addressing the changes proposed earlier this year, the advocacy group Center for Biological Diversity said the new rule changes the entire reporting process, making it more difficult for residents and making responses from regulators “discretionary instead of mandatory.”

Vivian Stockman, executive director of the Ohio Valley Environmental Coalition, said the 10-Day Notice process has been an important tool used in Appalachia.

The process was one tool used by activists to force the relocation of Marsh Fork Elementary School in Raleigh County away from the shadow of a coal processing plant, coal slurry impoundment and mountaintop removal operation. The groups argued the operations threatened the health and safety of the students.

“This rule change is all about trying to thwart people from seeking help when their communities are harmed by coal companies’ actions,” Stockman said. “What is indisputable is that this administration will side with the coal barons, communities be damned.”

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