Between The Lines - Joe Lovett: Patriot Coal Company Enters Agreement to Phase Out Mountaintop Removal Coal Mining (Week Ending Dec. 7, 2012)

Award-winning Investigative Journalist Robert Parry (1949-2018)

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Facing Lawsuit, Patriot Coal Company Agrees to Phase Out Mountaintop Removal Coal Mining

RealAudio MP3

Posted Nov. 28, 2012

Interview with Joe Lovett, lead attorney with Appalachian Mountain Advocates, conducted by Melinda Tuhus

On Nov. 15, the Patriot Coal Corp. announced a settlement agreement with the Sierra Club and two Appalachian advocacy groups to phase out mountaintop removal coal mining and eventually all surface mining. The company issued a statement that continuing that form of mining was in neither the company's nor the surrounding communities' best interest, stating that “Patriot Coal recognizes that our mining operations impact the communities in which we operate in significant ways." The Hobet mine complex, the largest mountaintop removal site in Appalachia is among the operations to be shut down. Two dozen activists briefly occupied the complex in July in an effort to draw attention to the destruction wrought by mountaintop removal mining.

Patriot Coal’s announcement was the culmination of years of litigation conducted by the non-profit, public interest law firm Appalachian Mountain Advocates to make mining companies accountable for their destructive environmental practices. In this case, the company was sued under the Clean Water Act because Patriot was releasing more selenium into nearby streams than regulations allow. Selenium, while not harmful to humans, has had a harmful impact on fish and bird species in the region. There will be no immediate layoffs of Patriot’s already small workforce because surface mining uses few workers, in contrast to underground mining, which requires more workers to dig and mine the coal.

Between The Lines’ Melinda Tuhus spoke with Joe Lovett, lead attorney with Appalachian Mountain Advocates. He explains how the lawsuit came about and what the victory of the Sierra Club, Ohio Valley Environmental Coalition and the West Virginia Highlands Conservancy in this case could mean for other coal operators.

JOE LOVETT: It's been developing over many years, and it started with the state Department of Environmental Protection's failure to enforce the selenium water quality standard against mining operators. In West Virginia, there's little distinction between the mining industry and the government. And our governors – Gov. Manchin, and now Gov. Tomlin – have done everything they can do to collude with the coal industry to protect it from having to comply with environmental laws. Not only was the DEP – the state's environmental agency – refusing to enforce the environmental laws, but it colluded with industry to prevent citizens from enforcing the laws. So, many years ago, we started appealing permits that the DEP was issuing and asking the Environmental Quality Board – a regulatory agency – to force the DEP to put limits on. The DEP would never put selenium limits on any permit, so we were finally successful in suing operators in federal court for failure to comply with state water quality standards for selenium. Really, we won in federal court because the DEP screwed up in its efforts to protect the agency. So it failed to advertise the permits as it was supposed to, and the federal court held that that failure to provide proper notice invalidated the permits and that we could sue the mining operators in federal court. And we did; we sued Patriot, and over many years, we've sued Patriot for many violations of state water quality standards resulting from selenium, to the point now where Patriot has several hundred million dollars in liability associated with its clean up of selenium. So in federal consent degrees and federal court orders, Patriot has been assessed hundreds of millions of dollars in cleanup fees and it has to accomplish all that in the next five years or so.

BETWEEN THE LINES: So, Joe Lovett, that is what Patriot meant when it issued a statement that it wasn't in the long-term interest of the company or the communities to continue surface mining?

JOE LOVETT: Partly. What's really going on is Patriot now has filed for bankruptcy, but it's not going to liquidate, it's going to re-organize and it's going to emerge with new financing from some of the biggest banks in the country. Patriot should come out of bankruptcy and continue mining. But it doesn't have the money to do things: to pay all its obligations to miners for their health and retirement benefits. The other is that it doesn't have the money to clean up the environmental liability as quickly as it's required to under our cases. So we agreed to give Patriot another ten months to a year to comply with its selenium obligations if it would agree to stop MTR permanently and to abandon surface mining altogether within the foreseeable future, and Patriot has agreed to that. There's pending before a federal court right now a consent decree that would bind Patriot forever to immediately stop seeking permits for MTR operations; to close down its current operations in short order; to bring its total surface production to three million tons by 2018, and after that to phase out surface mining altogether.

BETWEEN THE LINES: So when you say surface mining, are you including mountaintop removal, or MTR, as well as other surface mining?

JOE LOVETT: Yes, all surface mining – what they call small-scale surface mining as well. So MTR is gone very quickly. The other small scale surface mining is phased out over a number of years, but once current leases expire, there will be no more surface mining for Patriot.

BETWEEN THE LINES: You said Patriot's MTR mining will be over soon. Is there a specific date?

JOE LOVETT: Well, they've given up all their permit applications except for one, and they've agreed to close their other operations as they wind down, I would say, in two or three years they'll all be wound down, and they won't be seeking any new permits in the meantime.

BETWEEN THE LINES: So if all the other coal companies are in violation of their permits regarding selenium discharge as well, do you think this is the beginning of a domino effect?

JOE LOVETT: I hope so. I think it's gonna take longer for the other operators to go. Patriot's particularly vulnerable because it has the most selenium violations and because it's the most financially vulnerable of the companies right now. I do believe that all these companies will become unsound financially as the price of coal drops and that that will make their environmental liabilities much more important as a percentage of their operating cost, and will hasten the end of this kind of mining. Unfortunately, it's not going to happen tomorrow and it's not even going to happen in the next five years, so there's much work that needs to be done to make sure that we protect this region as the companies go out the door, but the companies are leaving, and it should be the obligation of our political leaders to make sure that they pay the cost of their business as they're going.

Learn more about Appalachian Mountain Advocates law firm at http://www.appalmad.org.