Mine Owner’s “Greener” Coal Plan Falls Short of Expectations
Michael Corkery and Michael Wines, © 2016 New York Times News Service
FAIRVIEW, W.Va. — The coal was piled about as high as it could go, spilling down to the railroad tracks and towering over the elevator shaft. A yellow bulldozer pushed the mound to make room for more. From a distance on this rainy day, the black heap looked like a giant whale about to swallow the mine whole.
The word underground was that Federal mine No. 2 would soon have to close. It was early April, and the mine was running out of storage space. There were not enough buyers for all the coal.
A few months earlier, this problem would have belonged to Patriot Coal, one of the nation’s largest coal companies, which used to operate the Federal mine, built near a meandering mountain stream called Miracle Run.
But this was not Patriot’s problem anymore. Nor was it the problem of the hedge funds and other investors that had lent the company millions.
When Patriot filed for bankruptcy in 2015 — its second time in three years — environmentalists and regulators were prepared for the company to figure out ways to shunt liabilities and maximize returns. But no one could have envisioned what happened next.
Patriot handed over millions of dollars of environmental obligations to a nonprofit company run by a man named Tom Clarke, who owned a chain of nursing homes and a tourist attraction that had fallen behind on its bills. Until that day in April, Clarke, 61, had never been in a coal mine.
Patriot sold not only the troubled Federal mine to Clarke but also several other mines that were no longer in operation, including a sprawling surface mine carved from the top of a mountain in southern West Virginia. Clarke’s new company agreed to clean up the shuttered mines and reclaim the land that had been ravaged.
As part of the deal, the miners’ union invested $10 million in the Federal mine operation, which was supposed to keep producing coal for Clarke to sell. But the mine has struggled from low coal prices.
“It was a spectacular deal for Patriot,” said Patrick McGinley, a law professor at West Virginia University who has been involved in cases against coal companies since 1970s. “This company has had complete success in divesting itself of all liabilities of every kind, including environmental liabilities, which are the hardest to shed.”
Why then, would someone like Clarke want to take over a troubled mine and the environmental obligations that Patriot Coal was seeking to get rid of? As improbable as it may seem, Clarke said the Patriot deal had played to his advantage — helping start his grand plan to remake coal mining into a greener industry.
He is not only reclaiming Patriot’s mines that are no longer in use. He has come up with a model, he said, for how the industry can keep producing coal, while reducing its impact on the climate.
The plan involves creating pollution credits by planting or preserving trees around the world to offset the carbon emitted from burning coal. For every ton of coal he sells, Clarke attaches some of the credits.
Clarke has had trouble, however, persuading buyers of his coal, like utilities and steel companies, to pay extra for the credits.
Clarke hoped electric utilities would be able to count his green-coal credits toward the carbon-emissions goals that the Obama administration has set for states in its Clean Power Plan, now before a federal court. But administration officials have effectively ruled that out.
That hasn’t stopped Clarke’s company from acquiring more mines. In addition to Patriot, Clarke has made deals over the past 11 months with several other struggling coal companies, gaining control of multiple underground mines, millions of tons of coal reserves and thousands of acres of surface mines.
He has even tried bidding on steel mills to create a captive buyer for his coal bundled with carbon credits. Now he is in the market for utilities, for the same reason.
While the Federal mine has cut back on production, some of his other mines are poised for a rebound. Demand for metallurgical coal — which is used for making steel — has roared back in recent months. One of the companies he founded with a longtime coal executive, ERP Compliant Fuels, is now one of the largest producers of metallurgical coal in North America.
“I am the guy that is trying to work from within,” Clarke said. “The goal is to have a big enough footprint to drive our environmental philosophy home.”
If this were a movie about the U.S. coal industry, Clarke would be the character who goes completely off-script.
For decades, the battle lines around coal have been clear. The companies are fighting to protect their diminishing business. Many environmentalists, meanwhile, are trying to limit coal production permanently and force the industry to clean up the damage it has inflicted on forests, rivers and lakes.
The debate over coal on the campaign trail is also predictable — Donald Trump has vowed to bring back lost mining jobs and roll back overzealous environmental regulations, and Hillary Clinton is promising to help mining communities transition out of coal and into new industries.
Environmental groups can almost smell victory. Many of the nation’s largest coal companies have filed for bankruptcy. Natural gas is pulling even and may surpass coal as the top power source in the United States.
The industry’s decline is forcing states to deal with how to clean up the mines and who should pay for it. In West Virginia alone, 300,000 acres of forest — an area half the size of Rhode Island — have been damaged by mountaintop mining, by one estimate.
After some challenges, Clarke’s reclamation work has been meeting regulatory standards and even exceeding expectations by some measures, one West Virginia official said.
In January, Gov. Earl Ray Tomblin (D-West Virginia) lauded Clarke in his state-of-the-state address for helping develop “new and innovative ideas.” Clarke is donating a reclaimed former Patriot mountaintop mine to the state to build an industrial park.
“Tom is a real visionary,” said Robert McAtee, one of several coal industry veterans who have come to work with Clarke. “He stepped in when no one else would.”
Clarke says he relies on the expertise of several seasoned coal executives to run his mining operations.
But environmentalists worry that Clarke is breathing new life into a polluting industry and that he is incapable of handling the huge mess the coal companies have handed him. In August, several environmental groups granted Clarke an extension on a court order to treat polluted runoff from a former Patriot mine, saying his “startup capital was less than expected.”
Environmentalists worry that if Clarke’s company runs into financial trouble, the cost of reclaiming the mines could fall to West Virginia taxpayers. Unlike Patriot, Clarke has few deep-pocketed Wall Street investors that the state could pressure to cover the costs, they say.
“These are strange days,” said Peter Morgan, a lawyer for the Sierra Club, who has been challenging the coal industry over water pollution issues for years. “I don’t know what Tom Clarke’s intentions are. But I am skeptical he can pull it off.”
‘Legend in the Coal Fields’
Bankruptcy is like a chess game in which companies seek to minimize liabilities and creditors look to maximize profits. Over the years, Patriot has played like a grandmaster.
The company was founded in October 2007 from a spinoff of coal mining giant Peabody Energy. From the start, Patriot was loaded with liabilities.
Peabody gave Patriot 13% of its coal reserves but 40% of its obligations to pay for health care for thousands of retired miners. In short, Patriot took over many of the company’s unionized mining operations in Appalachia, while Peabody kept its nonunion operations in the West.
“The legend in the coal fields is that Patriot was set up as a liability dump,” said Kevin Barrett, a lawyer at Bailey & Glasser, who represents the West Virginia Department of Environmental Protection in the coal bankruptcy cases. “It was destined to fail.”
In a statement, Peabody said: “Patriot Coal was highly successful when it became an independent, publicly traded company nearly a decade ago,” adding that its market capitalization quadrupled in less than a year.
But in July 2012, Patriot failed as predicted.
A few weeks before it filed for bankruptcy, the company, which is based in St. Louis, took steps to improve its chances in court, according to the union. Patriot created two subsidiaries in New York City, allowing its case to be heard there. The U.S. Bankruptcy Court in Manhattan was viewed as favorable to corporations looking to cut their debts.
After the coal miners’ union objected, the case was moved to St. Louis.
On that first trip through bankruptcy, Patriot was able to deal with its health care obligations after a separate fund was created to administer the benefits.
Health care was not Patriot’s only issue, though. The company faced huge costs for cleaning up selenium — a harmful coal byproduct — that was seeping into water sources downstream from its mines.
While industries readily used bankruptcy to shed labor and pension obligations, it was unclear whether coal companies could do the same with reclamations and water remediation.
In 1986, the Supreme Court blocked a New Jersey company from abandoning its oil waste processing plants in bankruptcy, citing a threat to public health and safety. But it was unclear whether the judges in the coal bankruptcy cases would rule that defunct mines posed the same pressing health threat.
In the end, Patriot was able to emerge from its first bankruptcy without dealing with most of its environmental liabilities.
By 2015, the U.S. coal market was in a deep slide, as utilities and manufacturers increasingly turned to natural gas and demand from China cooled. One after another, mining companies, including Patriot, declared bankruptcy.
“Everybody knew what to expect in Round 2,” Barrett said. “They would try to sell their best assets and leave their biggest environmental problems behind.”
Knack for Deals
The Natural Bridge is a rocky arch towering 215 feet above a small creek in southwestern Virginia.
Thomas Jefferson bought the property from King George III of England for 20 shillings. Today, it is owned by a nonprofit company started by Clarke. He bought the bridge in 2014, using a $9.1 million loan from the state of Virginia.
Clarke planned to revitalize flagging ticket sales to the bridge, then hand over the property as a state park. But his plans ran into trouble early on. Visitors dwindled, and he defaulted on his state loan. He had to use proceeds from selling coal and land to help get caught up on his bills.
In September, Clarke handed over management of Natural Bridge to the state. His nonprofit group, called the Virginia Conservation Legacy Fund, will still own the property until it pays back the loan. Some state officials praised Clarke’s work preserving the property but also had to give him more time to pay back his debt.
Clarke compares his struggles to those of the former president, who also ran into financial trouble. “I sort of felt like I am having my Jeffersonian moment,” Clarke said.
Relentlessly upbeat, with a near permanent smile and the soothing voice of a public radio announcer, Clarke has spent a career trying to turn around an eclectic assortment of companies. He has bought troubled nursing homes, a forest preserve in Belize and a restaurant in Roanoke, Virginia — a “philanthropub” that was supposed to dedicate its profit to Africa until it closed down in March 2015.
In the 1990s, he turned one of his companies, Lenox Healthcare, into a $400-million-a-year business — one of the largest nursing home chains in the country. His former business partner at Lenox, Lawrence B. Cummings, called him a master at bolting together impossible business transactions. “He showed again and again an ability to put together deals that other people couldn’t.”
Lenox was a juggernaut, Clarke said, until it went bankrupt in 1999. Clarke said he began to rethink his life’s goals. He went hiking in South America, where he met his wife, Ana, a native of Venezuela.
They moved to Virginia, converted his remaining nursing homes to nonprofits and placed them under a new company, Kissito (pronounced kiss-E-tow) Healthcare. He became interested in poverty issues in Africa and began raising money and building a maternity hospital in Ethiopia.
Clarke said he realized that many of the problems like drought and extreme floods in Africa were caused by climate change. Back in Virginia, Clarke said, he decided to take aim at the coal industry’s contribution to carbon emissions.
Too often, Clarke said, the debate over the future of coal is infected with what he called tribalism — a conviction that you are either with the mining industry or against it. He said he was trying to find some middle ground.
Clarke’s first foray into the coal industry came when he took a job in late 2014 with Jim Justice, a wealthy West Virginia businessman who had built a fortune partly on coal. Clarke’s job was to assist Justice and his Southern Coal Corp. in dealing with hundreds of environmental violations at mines across Appalachia.
While results are difficult to track, some environmental groups acknowledge that Clarke’s work had an appreciable impact on the Justice properties. A Democrat, Justice is running to become West Virginia’s next governor. Through a spokesman, he declined to comment.
One of Clarke’s believers is Chandler Van Voorhis, a founder of C2I, a company outside Washington. C2I’s business is planting trees. The trees soak up carbon dioxide, converting it to wood and leaves. An acre of trees can convert 156 tons of carbon in one year, Van Voorhis said.
C2I plans to reforest a million acres in the southern Mississippi River Valley and sell the carbon offsets to companies to reach pollution-reduction goals. Together, Clarke and Van Voorhis sketched a plan to bundle C2I’s carbon offsets with coal.
Their plan faced some steep challenges including this one: There was no natural market for coal bundled with pollution credits because of its higher cost.
Undaunted, Clarke hired an investment banker and lawyers to hatch his idea.
“Wall Street’s a pretty cynical place,” said Tim Hess, a real estate developer in Virginia, who introduced Clarke to his banking contacts. “But when you see somebody with that kind of passion and integrity, if there’s a way to make business sense out of it, I think people lean forward.”
A Reclamation Plan
Patriot Coal’s executives and advisers first met Clarke around the start of the company’s second bankruptcy case in May 2015.
For this second bankruptcy filing, Patriot chose to file in Richmond, Virginia, where restructuring experts say some judges are eager to move large bankruptcy cases through quickly. The choice turned out to be a fortunate one.
During the first day of bankruptcy hearings, Clarke said, he happened to be in Richmond for a meeting with state officials when he wandered over to the federal courthouse. “It just amazed me how quickly they rushed through everything,” Clarke recalled of the proceedings.
The best mines would be sold to Blackhawk Mining, a coal company in Kentucky, which would run the properties with financing from some of Patriot’s lenders. The less valuable mines would be placed in a separate “liquidating trust.” The sole purpose of that trust would be to clean up water pollution and reclaim the mines.
West Virginia officials felt comfortable with this arrangement because they could pressure Patriot’s hedge fund lenders to contribute money to the trust for reclamation work, said Barrett, the lawyer for West Virginia’s environmental protection agency. Equally important, regulators could hold Patriot’s top executives liable for completing the mine cleanup. If they failed, the government could deny them mining permits until the work was completed.
“It was incredibly important to them personally, because these liabilities would follow them,” Barrett said.
But Clarke was proposing something else entirely. His nonprofit company would assume Patriot’s environmental and reclamation obligations. And ultimately, the deal would release former executives from liability.
At first, regulators and advisers to Patriot didn’t know what to make of Clarke. He had no experience. He had no traditional bank financing. When he came to meet Patriot’s management for the first time, he brought his young daughter with him. A company secretary watched her while he met with the executives for hours at the Charleston airport.
Many people involved in the negotiations assumed that Clarke had the financial backing of Justice, but that wasn’t the case.
Initially, state regulators did not consider Clarke a realistic option. So when Patriot signaled last summer that it was going to make a deal with Clarke, Barrett said, “we were floored.”
Shortly before a crucial court hearing, a major piece of Clarke’s financing fell through. Patriot’s lawyer and investment bankers scrambled to keep the deal from falling apart.
In the end, Patriot agreed to effectively lend Clarke $5 million, and the coal miners’ union also stepped in with money. Surety companies that had insured Patriot’s reclamation obligations agreed to release millions in cash so Clarke could start the work.
Regulators and environmental groups worried that if the state held up the deal, Patriot could threaten to liquidate its properties, leaving no money for reclamations.
“It was the least bad outcome,” Morgan of the Sierra Club said.
Even if Clarke’s venture proves short-lived, Morgan said, he has already completed a good deal of reclamation work. Clarke said his fund has spent about $28 million on the work to date.
As insurance, Patriot’s lenders contributed $12.5 million to backstop the reclamation work in case Clarke failed. The state also has some control over the account that Clarke uses to pay for reclamation work.
For Clarke, the Patriot agreement opened the door to other deals. He took over reclamation obligations from Walter Energy, another mining company that had declared bankruptcy. He also picked up more viable mines and a coke processing plant from Walter. This spring, his company vied to take over an entire coal company, Alpha Natural Resources, but the bid was not accepted in the bankruptcy case.
“For someone with zero experience to come into this complex and troubled industry proposing the sort of things he is proposing is astonishing,” said McGinley, the law professor. “I give him the benefit of the doubt. But I don’t see where it is going.”
‘Coal Isn’t the Villain’
It was raining when Clarke and a clutch of miners rode a cavernous elevator 734 feet down to the dank shafts of Federal mine No. 2 last spring. At the bottom, the men boarded trains that clanked and jerked along wooden tracks through a maze of silent tunnels, empty except for the occasional mouse scurrying. The trains passed emergency shelters and ventilation shafts pumping cool air from above.
This is the miners’ 45-minute commute to the coal seam, where they shave off thousands of tons of black rock each week.
“I am proud of you,” Clarke told some of the miners.
As part of the deal with Patriot, the coal miners’ union invested $10 million and took a 20% stake in the Federal mine, which Clarke says he is doing everything he can to keep open even though it doesn’t break even.
When he bought the Federal mine from Patriot, Clarke said, he expected to sell its coal for at least $50 a ton. Recent shipments have sold for just above $40 a ton, he said. On some weeks, the mine has had to operate on a three-day schedule because of the low demand for thermal coal, which is used to produce electric power.
Phil Smith, a spokesman for the United Mine Workers of America, said the union expected production to improve at the mine when the broader coal market recovered.
Still, Clarke’s company has shifted away from thermal coal and is hunting for mines that produce the much more valuable metallurgical coal used in steel production. Last month, an ERP-affiliated company acquired a set of huge surface mines in British Columbia out of bankruptcy.
Unlike many of the Patriot mines that Clarke acquired to clean up, these new mines are capable of pumping millions of tons of new coal onto the market each year, and he’s projecting big profits next year.
Ultimately, Clarke hopes to offset all of the expected emissions from the coal he is producing with pollution credits. But right now, he is offsetting only 10%. That worries environmentalists. “It’s all I can afford,” he said.
Clarke says he has been absorbing the costs personally until he can persuade utilities and steel mills to agree to pay for credits. He is hoping that states, led by West Virginia, will allow utilities to pass through the costs of his credits to ratepayers. Those discussions are continuing, he said.
“Coal isn’t the villain,” he said. “The villain is excess carbon dioxide in the atmosphere, and we have to find ways to deal with it.”
To Learn More:
Natural Gas Likely Overtook Coal as Top U.S. Power Source in 2015 (by Scott DiSavino, Reuters)
Coal Companies Gain Federal Subsidies by Selling Coal to Themselves (by Noel Brinkerhoff and Danny Biederman, AllGov)
Owner of Biggest U.S. Coal Mine May Lack Insurance for Mine Cleanup, Dumping $1.4 Billion Risk onto Taxpayers (by Noel Brinkerhoff and Steve Straehley, AllGov)
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