This article originally provided by The Charleston Gazette

February 26, 2006

DEP settling hundreds of Massey violations

By Ken Ward Jr.
Staff writer

The state Department of Environmental Protection is trying to settle hundreds of Massey Energy pollution violations that date back more than seven years, according to records obtained under the state Freedom of Information Act.

Under the deal, Massey would pay a fraction of the millions of dollars in fines that could have been sought under state and federal water pollution laws.

But so far, DEP officials have not told the public exactly how many or what kind of violations they are proposing to settle.

When DEP announced the deal Jan. 5, agency Secretary Stephanie Timmermeyer issued a one-paragraph public notice.

In that notice, DEP said it was proposing to settle five lawsuits against four Massey subsidiaries.

Those suits, filed in October 2003 and April 2004, cited specific water pollution violations by Massey’s Bandmill Coal, Independence Coal, Marfork Coal and Omar Mining.

But the proposed settlement reveals that the deal would also end 14 DEP enforcement cases that sought the most serious penalties allowed under state mining law — permit suspensions that would halt coal production.

Those cases, including one dating back to the Underwood administration, involve more than 70 violations of state strip mining rules.

The nine-page document also contains broad language that releases Massey from any penalties for any other violations that occurred prior to Dec. 1, 2005.

The document does not list those violations or say how many violations that language would cover.

“I just didn’t think it was necessary,” said Perry McDaniel, chief of the DEP Office of Legal Services.

“The purpose of an order is to explain the terms,” McDaniel said. “It doesn’t have to have every detail in it.”

McDaniel said DEP officials had been negotiating the deal with Massey for several years.

“We had all of these other pending enforcement matters, and we looked at that, and decided to include those in the discussions,” he said. “It’s not like we settled without any understanding of what was out there.”

Massey officials say their company’s policy is not to respond to questions from Charleston Gazette reporters.

Mike Zeto, DEP’s top enforcement inspector, said agency officials reviewed thousands of records to come up with a comprehensive picture of Massey’s violation history.

“It was the most extensive effort that I’m aware of that the agency has put forth in analyzing the compliance of a particular company,” said Zeto, a 27-year agency veteran.

Still, DEP has been unable to provide a complete list of the violations that would be settled by its proposed agreement with Massey.

Jessica Greathouse, DEP’s public information officer, said the Sunday Gazette-Mail would have to file a Freedom of Information Act request before the agency would release any information about the violations being settled.

In response, DEP has so far provided several lists that agency staff compiled of some of the violations involved.

Initially, the agency released a list showing 234 water pollution violations that were cited at certain Bandmill, Independence, Marfork and Omar operations before the DEP filed its lawsuits.

Another set lists 82 violations that were cited at those same operations after the lawsuits were filed.

Under the federal Clean Water Act, violations of water discharge limits can bring fines of up to $25,000 a day.

If each of those 316 violations lasted one day, DEP could have fined Massey up to $7.9 million.

Instead, the settlement proposes $1.4 million in penalties.

But those lists provided by DEP do not include all violations that would be resolved by the proposed settlement, according to agency records.

For example, the DEP lists include only the Bandmill, Independence, Marfork and Omar operations that were named in the agency’s lawsuits.

At the same time, the settlement proposes to resolve all violations prior to Dec. 1, 2005, at any of those companies’ operations.

Each of the four companies holds many more DEP permits than are covered by the agency’s violation lists.

For example, DEP records list 56 permits held by Independence. But the violation lists for Independence cover only six permits. DEP’s violation lists cover only one of the 20 permits Marfork holds.

Late Friday afternoon, DEP released another list. This 26-page list included nearly 1,900 violations by all Massey subsidiaries operating in West Virginia, according to Zeto and Greathouse.

“This is the universe of violations for Massey,” Greathouse said.

Zeto said the list included all violations at all Massey operations between January 2001 and mid-June 2005. But, the document was titled, “Massey violations since 01-01-2,” and it included some violations from 2000.

It was not immediately clear how many of the violations on that list were Clean Water Act citations, which can draw significantly higher fines than violations of strip mine rules.

“There is not a master list of violations that exists,” Greathouse said. “I don’t have a number — 500 or 2,000 violations — that I can give you.”

Zeto released a separate document, prepared last month, which showed that four Massey subsidiaries — Marfork, Omar, Bandmill and Independence — already paid more than $1 million in penalties for some of the violations included on DEP’s lists.

“One of the factors that we considered — were these matters already addressed, and for the most part we felt that they were,” Zeto said Friday evening.

To contact staff writer Ken Ward Jr., use e-mail or call 348-1702.