Court Issues Emergency Order Blocking Mountain Valley Pipeline From Stream, Wetland Construction

A federal appeals court has temporarily blocked developers of the Mountain Valley Pipeline from doing construction across streams and wetlands in southern West Virginia and Virginia.

The emergency administrative stay was issued Friday by the U.S. Court of Appeals for the Fourth Circuit.

Environmental groups led by the Sierra Club appealed to the court to stop river and stream crossings after the U.S. Army Corps of Engineers on Sept. 25 reissued the project’s permit that allows the 303-mile natural gas pipeline to cross nearly 1,000 waterways in the two states. The original approvals were tossed by a federal appeals court in 2018.

Environmental groups asked the Corps to reconsider. When the agency upheld its permits, advocates filed a lawsuit with the Fourth Circuit asking the court to review. The emergency order will remain in place until the court considers the full motion to stay.

Environmental groups, in briefs, cited an Aug. 4 earnings call during which pipeline developer Equitrans told its shareholders it would rush to complete stream crossings before the court could stop it.

In its response, Mountain Valley Pipeline opposed the stay. Developers said it ultimately expected cases from the environmental groups to fail and said it reached out to the Sierra Club in an effort to discuss the river crossings of most concern.

Mountain Valley Pipeline had previously agreed not to undertake any waterbody construction through Oct. 17.

The Friday ruling by the court puts stream construction projects on hold. However, an Oct. 9 order by the Federal Energy Regulatory Commission partially lifted a stop-work order for the multi-billion dollar project on all but 25 miles of national forest land. The agency also extended the project’s for two years. Despite the court order, construction along the route may resume in other areas.

Environmental Risks Remain As Blackjewel Bankruptcy Nears Its End

Environmental advocates worry a coal company liquidation plan will leave dozens of coal permits in eastern Kentucky unreclaimed, according to filings in the bankruptcy proceedings of Blackjewel L.L.C.

The bankruptcy case has dragged on since last July, when the once-mighty coal company’s Chapter 11 filing left hundreds of Appalachian coal miners suddenly without work, and without weeks of pay. Now the company has until the end of 2020 to exit bankruptcy, and to do that, it needs the court to approve the very liquidation plan that has environmentalists concerned.

Mine land that is not reclaimed or improperly reclaimed can leave behind highwalls of cut rock, stripped land subject to erosion and runoff, and potential water pollution. Blackjewel accrued hundreds of environmental violations in the months following its bankruptcy.

Filed September 25, the plan, if approved, would dissolve the entity once known as Blackjewel, LLC, and would place the responsibility for reclaiming any unsold permits onto a newly formed Reclamation Trust.

Funding for the trust would come from surety bonds. The Appalachian Citizens Law Center, which is one of the entities expressing concern about the plan, estimates those surety bonds to be worth about $40 million.

It is not clear how many permits would fall into this category. The Kentucky Energy and Environment Cabinet recently revised its count from 43 to 38. There are likely more permits in a similar condition in Virginia and West Virginia, other states where Blackjewel operated.

Mary Cromer, an attorney with ACLC, believes that the many mining entities involved with the permits means even more of them are likely left with no responsible party.

The plan would also “extinguish” the unsold permits themselves, but does not require the Reclamation Trust to apply for new permits. That could mean the federal government would have less power to force the Trust to complete reclamation projects. It would also mean citizens would have less recourse to sue if unreclaimed mine land caused damage off-site.

Other environmental groups concerned with the plan are Kentuckians for the Commonwealth, Citizens Coal Council, Appalachian Voices, the Sierra Club, and the Powder River Basin Resource Council.

Blackjewel has not yet responded to the groups’ filing.

A plan confirmation hearing is scheduled for later this year, where Blackjewel’s creditors, as well as interested parties such as the Appalachian Citizens Law Center, can present objections before the court. ACLC has not confirmed whether it will present formal objections at that time.

Report: Radiation Levels Higher Downwind Of Fracking Sites

A team of Harvard researchers found elevated levels of radioactivity on air particles measured downwind of fracking sites around the country.

The levels found were well below public health limits, but the authors warn they could induce “adverse health effects to residents living close” to fracking sites. The study was published this week in the journal Nature Communications.

The authors looked at 16 years worth of data from the EPA’s radiation monitoring system, from 2001 to 2017. They found increased radiation on particles 12 miles (20 km) to 31 miles (50 km) downwind of fracking sites. Those close to shallower conventional wells, meanwhile, showed virtually no increases.

The study’s lead author, Petros Koutrakis, professor of environmental sciences at the Harvard School of Public Health, said the radiation is likely coming from uranium and radon buried inside oil and gas-bearing rock formations.

“It’s a concern, but it’s not something (where) people should move out as soon as possible. I think it’s an additional risk,” Koutrakis said. “I think this is the reason we need to control these emissions.”

The authors found no evidence of a “statistically significant association” between fracking activities and an increase in radiation in the Marcellus and Utica shale region, which includes Pennsylvania. But the authors said that was probably due to a lack of monitors near gas drilling sites in the area. When they estimated how big an effect drilling would have on radiation levels there, they found the Marcellus region’s would be the biggest of all the U.S. regions studied.

“The largest effect was estimated for the (Marcellus-Utica) region,” Koutrakis said, in an email, “which is expected because of its high radon levels. However, it did not reach statistical significance most likely due to the small number of … monitoring stations in the area.”

Koutrakis said it’s unclear where in the extraction process the radiation is coming from.

“We don’t really know whether this is immediate, during the construction of the well, or during the production (process), or from the points that they use around the facilities to store wastewater,” Koutrakis said.

“We think that it is something that needs to be investigated to understand the process that produces releases of radon and to develop the engineering controls to control these emissions.”

Avner Vengosh, a professor of Earth and Ocean Sciences at Duke University, who was not involved in the study, said that while the actual levels of radiation detected were small, they warrant more investigation.

“Even though it’s a very small absolute concentration, it shows that (the radiation levels are) systematically higher than background,” Vengosh said. “This paper for me is saying there’s much more work to be done in a much more local scale to see the impact, especially where people are living.”

The Pennsylvania Department of Environmental Protection, which has studied naturally occurring radiation in shale gas activities, is reviewing the paper, spokesman Neil Shader said.

The Pennsylvania Department of Health, which is studying the health impacts of fracking, is also reviewing the paper, spokesman Nate Wardle said.

In a statement, Marcellus Shale Coalition President Dave Spigelmeyer stressed that public health was “a top industry concern” and pointed to a 2016 Pennsylvania DEP study that found “little or limited potential for radiation exposure to workers or the public” from fracking operations.

Though the DEP report did find “potential for radiological environmental impacts” from spills of drilling waste, it generally found little public health risk from airborne radiation in the industry.

Koutrakis acknowledged that, as a replacement for burning coal, fracking has led to lower emissions from the power sector.

“I understand that this industry is very important to the U.S. economy and to people that have jobs in it,” he said. “So it’s important for this industry to continue in the near future. However, I think we need to understand what kind of emissions are released.”

PSC Gives Go Ahead To Raleigh County Solar Project

West Virginia regulators have issued a key approval for a proposed solar project in the southern part of the state that is estimated to generate enough power for 16,000 West Virginia homes annually — the first project approved under a new utility solar bill passed by the Legislature earlier this year.

The West Virginia Public Service Commission on Monday granted a siting certificate for a 90- megawatt solar farm in Raleigh County. The $90 million project by developer Raleigh Solar I, LLC, would consist of about 250,000 solar panels located on about 530 acres of largely undeveloped, wooded area east and west of Grandview Road immediately north of I-64.

Under the agreement, the PSC is requiring Raleigh Solar to begin construction within five years and finish within 10. According to the project’s website, developers hope to have the panels operational in late 2022 or 2023.

The project is being developed by Colorado-based Dakota Power Partners. The PSC says the company has agreed to use local union workers to build the project. Developers estimate it will create 150-200 construction jobs and 3-5 long-term, full-time positions.

This is the first siting certificate issued since the passage of Senate Bill 583. The bill, which was requested by economic development officials at the state Department of Commerce and at times was the center of contentious debate among lawmakers, creates a utility solar program in West Virginia. Supporters of the bill argued having access to solar power is crucial in order to help draw new businesses to the state. Opponents feared new solar generation could displace coal. West Virginia is ranked 48th in the nation for installed solar capacity, according to the Solar Energy Industries Association.

The bill also required the PSC to develop a specific administrative process to streamline the application of siting certificates from solar wholesale generators. A review of the PSC docket shows the Raleigh County project drew support from groups including the state Commerce Department and Sierra Club, as well as numerous state lawmakers.

“The presence of a 90-megawatt (MW) utility-scale solar energy generating facility in Southern West Virginia would be an extremely useful tool as we seek to recruit employers and encourage expansion of existing companies,” wrote Michael Graney, executive director of the West Virginia Development Office in a May 2020 letter to the PSC.

The siting certificate is conditioned upon Raleigh Solar receiving all other necessary permits and approvals, the agency said in a news release.

Bob Murray, Who Fought Against Black Lung Regulations As A Coal Operator, Has Filed For Black Lung Benefits

Robert E. Murray, the former CEO and president of the now-bankrupt Murray Energy, has filed an application with the U.S. Department of Labor for black lung benefits. For years, Murray and his company fought against federal mine safety regulations aimed at reducing the debilitating disease.

“I founded the company and created 8,000 jobs there until the move to end coal use. I am still chairman of the board,” he wrote on a Labor Department form that initiated his claim obtained by the Ohio Valley ReSource. “We’re in bankruptcy, and due to my health could not handle the president and CEO job any longer.”

According to sources, Murray’s claim is still in the initial stages and is being evaluated to determine the party potentially responsible for paying out the associated benefits. The Labor Department is required to determine a liable party before an initial ruling can be made on entitlement to benefits. If Murray’s claim were to go before an administrative law judge, some aspects of the claim would become a matter of public record.

The Ohio Valley ReSource confirmed the authenticity of Murray’s claim documents by inputting associated information — including his last name, birthdate and a case ID number — into an online portal maintained by the Labor Department.

In his claim, Murray, who is now 80 years old, writes that he is heavily dependent on the oxygen tank he is frequently seen using, and is “near death.”

North American Coal Corporation is named as one potentially liable party in Murray’s claim for the benefits. According to documents associated with his claim, he states that he was employed by the company from May 1957 to October 1987 — where he ascended through its ranks, first as a miner before taking on the role of president.

Later, he served as president and operator of Ohio Valley Resources, Inc. and a subsidiary from 1988 to 2001. He founded Murray Energy in 1988.

He states in his claim for benefits that he worked underground while supervising operations throughout the years.

“During my 63 years working in underground coal mines, I worked 16 years every day at the mining face underground and went underground every week until I was age 75,” Murray wrote in his claim.

Reached by phone, Murray declined an on-the-record interview for this story. Murray said he has black lung from working in underground mines and is entitled to benefits. Additionally, he disputed that he ever fought against regulations to quell the disease or fought miners from receiving benefits.

Murray also threatened to file a lawsuit if a story was published that indicated he had fought federal regulations and benefits.

But Murray told NPR in October 2019 that he had a lung disease that was not caused by working underground in mines.

“It’s idiopathic pulmonary fibrosis. IPF, and it is not related to my work in the industry. They’ve checked for that,” Murray told NPR. “And it’s not — has anything to do with working in the coal mines, which I did for 17 years underground every day. And until I was 76, I went underground twice a week.”

History Of Fighting Safety Rules

Like other coal operators, Murray’s companies have disputed the claims made by miners who seek black lung benefits. The coal magnate, who for decades ran the largest privately owned underground coal mining company in the United States, has also been at the forefront of combatting federal regulations that attempt to reduce black lung, an incurable and ultimately fatal lung disease caused by exposure to coal and rock dust.

In 2014, Murray Energy spearheaded a lawsuit against the Obama administration over a federal rule that strengthened control of coal dust in mines.

The Obama-era standard reduced the acceptable amount of coal dust exposure for miners, increased the frequency of dust sampling, and required coal operators to take immediate action when dust levels are high.

The reforms were the first in more than four decades to tighten exposure standards to coal dust and came at a time that evidence was mounting that Appalachia was seeing a deadly resurgence in the most severe form of black lung, after reaching historic lows in the 1990s.

“It’s ironic that Murray’s company fought hard to block the 2014 respirable coal dust rule we put in place to prevent the black lung disease,” said Joe Main, who served as assistant secretary of the Mine Safety and Health Administration under President Barack Obama.

MSHA, as it is known, is the agency within the Labor Department tasked with implementing and enforcing mine safety rules, including those aimed at reducing black lung.

Murray Energy’s lawsuit claimed that adhering to the new rule would have been virtually unachievable with available technology and would cost the industry billions. Murray’s suit failed, but Bob Murray tried again to block implementation of the dust rule, this time by influencing the incoming administration of President Donald Trump.

Murray, a staunch Trump supporter, has been a major player in shaping the current administration’s energy policy agenda and has funded groups that deny the existence of climate change. Early in Trump’s term, the coal magnate delivered a detailed action plan aimed at helping the declining industry. Among the requests: overhaul the “bloated” MSHA and “revise the arbitrary coal mine dust regulation” which Murray claimed would cost the industry “thousands of jobs.”

The coal industry’s biggest players and lobbyists, including the National Mining Association, have fought tighter regulations. Wes Addington, executive director of the Appalachian Citizens’ Law Center, a nonprofit law firm that has for years represented miners in black lung benefits cases, said Murray was at the forefront of that fight.

“Today, in 2020, we’re seeing more miners with more advanced black lung than the country has ever seen. And yet, the industry over the past 10 to 20 years, has consistently fought against any regulation that would try to limit the amount of dust that miners breathe,” Addington said. “Murray Energy has been part of that fight, along with a number of the largest coal companies in the country.”

 

Black Lung Claims Process

To qualify for black lung benefits, miners must prove both that they have the debilitating disease and that they are totally disabled due at least in part to a breathing impairment caused by black lung.

The diagnosis is usually done through X-rays and other tests and certified by a medical professional. To get federal benefits, a miner will first assemble and submit a claim to the Labor Department. The agency will review the claim and make a determination as to whether there is substantial evidence to prove both the presence of the disease and that it has disabled the miner. If the claim is approved, the federal government will begin paying out medical benefits, also called interim benefits, from the Black Lung Disability Trust Fund, a federal pot of money that pays for some benefits and is funded by a tax on each ton of coal mined.

Then the Labor Department turns to the coal company deemed to be responsible for the miner’s disease to pay for the benefits. Advocates that work on black lung benefits say, more often than not, the coal company or its insurance carrier will fight the claim, which often pits miners against their former employers in court.

“You often see doctors who testify for coal companies raise an argument about, perhaps the miner was overweight. Perhaps the miner has been exposed to animal manure if he grew up on a farm, and perhaps that is causing his breathing trouble today — after working for 15 or 20 or 30 years in the mines,” said Sam Petsonk, a West Virginia-based attorney who has represented former Murray miners seeking black lung claims.

Petsonk, who is also the Democratic candidate for West Virginia Attorney General, said litigation involving claims for black lung benefits can drag out often for many years and in some cases for decades. In some documented cases, miners have died before their claims were settled.

Davitt McAteer, former MSHA assistant secretary, said the tactic of attorneys representing mining companies named in black lung claims is to slow down or stall the process.

“If you’ve black lung, you’re dying. There’s no two ways about it. And you may live for a while, but you’re going to die soon,” he said. “And all I have to do is — if I’m the lawyer on the other side — wait around, wait him out and they’ll die. And they did. And then, the claimant goes to the widow and you wait her out, too.”

According to Murray’s claim for benefits, his wife Brenda is listed as a dependent. If Murray’s claim for benefits is approved, his wife would receive the benefits for the rest of her life, regardless of whether the claim is approved before or after his death.

If a coal company goes bankrupt or if no responsible party is determined, benefits may be paid from the Black Lung Disability Trust Fund, which currently covers expenses for some 25,000 miners and their dependents. A recent report from the Government Accountability Office found the trust fund is expected to be $15 billion in debt by 2050.

Bankruptcy

Murray Energy’s bankruptcy last year added to the burdened fund. In October 2019, the coal operator filed for Chapter 11 bankruptcy protection. The company cited billions of dollars in liabilities and a weak and struggling market for coal.

“Although a bankruptcy filing is not an easy decision, it became necessary to access liquidity and best position Murray Energy and its affiliates for the future of our employees and customers and our long-term success,” then-CEO Murray said in a release issued at the time.

The proceedings, which concluded in September, provided a rare glimpse into the private company. Creditors argued Murray and his nephew and now CEO of the company, Robert Moore, viewed the mining company as a “family piggy bank” and cited a “disturbing pattern of self dealing and abuse of corporate resources.”

They documented multi-million dollar cash bonuses for both Murray and Moore, as well as the use of the company’s aircraft for personal purposes among other allegations. Murray Energy denied those claims.

According to court filings, Murray Energy could be responsible for as much as $155 million under the Black Lung Act and general workers’ compensation, but testimony from the Government Accountability Office shows that the company only offered $1.1 million in collateral.

As is common in coal bankruptcies, Murray and its successor company were relieved of any obligation to pay existing black lung benefits by the bankruptcy court. Those benefits are now being paid by the federal Black Lung Disability Trust Fund.

Under the final bankruptcy agreement, Murray has been removed from company leadership, although he remains on the board.

Other Violations

Murray mining operations have also had a number of high-profile mine safety incidents over the years, including the disastrous collapse of a mine in 2007.

In August 2007, nine miners and rescuers died after the Murray-owned Crandall Canyon mine in Utah collapsed. The Labor Department fined the company $1.85 million for violating federal mine safety law. In 2012, the agency settled with Murray for a reduced amount. The settlement included acknowledgement by Murray Energy for its “responsibility for the failures that led to the tragedy.”

Murray later told NPR “this settlement is not an admission of any contribution to the August 2007 accidents.”

Murray was also sued by the Labor Department after miners complained the CEO personally told workers in a meeting in late 2013 to stop making complaints to federal regulators. Under federal law, miners have the right to speak anonymously to government inspectors about mine safety concerns. In 2019, Murray lost an appeal in the case. The court upheld a decision that Murray must personally apologize.

This story was edited and produced by the Ohio Valley ReSource.

Drilling Permits Cancelled For Underground Natural Gas Storage Project

Ohio environmental regulators have canceled key permits needed for an underground natural gas liquids storage facility proposed along the Ohio River.

According to an order from the Ohio Department of Natural Resources, permits to drill three three Class III solution mining wells in Monroe County, Ohio were cancelled on Sept. 21. Cancellation was requested by Powhatan Salt Company LCC. The proposed wells are associated with the Mountaineer NGL Storage project, a multi-million dollar underground natural gas liquids storage project.

Experts say natural gas liquid storage — like the proposed Mountaineer project — is crucial to building out the Ohio Valley’s petrochemical industry.

In July, Mountaineer finalized an agreement with the developers of a proposed petrochemical plant in nearby Belmont County, Ohio. The plant would use natural gas liquid ethane to produce the feedstock for plastics and chemicals. Earlier in July, one of the plant’s investors pulled out of the project. Last week, the plant’s developers signed a contract with gas supplier Range Resources to provide the yet-to-be-built plant with ethane feedstock.

A coalition of environmental groups challenged Powhatan’s drilling permits arguing ODNR did not follow proper administrative procedure before issuing them.

The groups include Concerned Ohio River Residents, FreshWater Accountability Project, Buckeye Environmental Network, Ohio Valley Environmental Coalition and the Sierra Club.

In a statement, Tom Sanzillo, director of finance at the Institute for Energy Economics and Financial Analysis, an energy finance think tank, characterized the request by Powhatan to cancel the permits as a signal the project may be in jeopardy.

“This is a solid market signal that plans for a petrochemical buildout in Ohio and western Pennsylvania are on shaky ground,” he said. “Local and state economic development officials would serve the public better by looking for jobs and taxes in other areas of the economy that are actually profitable and growing and can be good neighbors to the communities that host them.”

According to the ODNR order, the company can reapply for the permits.

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