This article originally provided by The Charleston Gazette

April 10, 2008

Judge OKs EPA fine for Massey water suit

By Ken Ward Jr.
Staff writer

A federal judge on Wednesday approved a deal that requires Massey Energy to pay a record $20 million fine to resolve thousands of alleged water pollution violations across the Appalachian coalfields.

U.S. District Judge John T. Copenhaver Jr. signed off on the deal, concluding it was "fair, adequate and reasonable."

Copenhaver issued a 17-page order that approved the resolution of the major water pollution lawsuit filed against Richmond, Va.-based Massey by the U.S. Department of Justice and the Environmental Protection Agency.

Copenhaver said the case had "appeared poised to consume a significant amount of time and money from the parties, and hence the taxpayers, along with a substantial redirection of judicial resources.

"The decision to avoid what might well have been a costly and time-consuming diversion of limited agency resources appears to have been a reasonable one, under the circumstances," Copenhaver said in his ruling.

Massey, and then the government, announced the deal in mid-January, but federal regulations required a public comment period before it could be approved.

In his ruling, Copenhaver noted federal officials received only two comments from the public on the settlement.

One woman praised the EPA for the enforcement action. Another commenter, environmental activist Dave Cooper, suggested part of the $20 million from the deal be used to build a new Marsh Fork Elementary School, to replace one near a Massey coal processing plant and waste impoundment. Federal officials said the Clean Water Act does not allow such a project.

The original lawsuit, along with dozens of attached lists, detailed thousands of violations of permit limits for acidity, sediment, iron, manganese and other pollutants. The EPA said in many cases, Massey operations discharged pollution in amounts 40 times the permitted limits.

When they filed the suit in May 2007, government lawyers alleged Massey and its subsidiaries "have a long history of noncompliance" with water pollution rules. Massey operations, the government alleged at the time, "remain in substantial noncompliance with the law."

The 54-page settlement forces Massey to set up extensive databases and conduct intensive compliance audits, as well as quickly fix problems and report company-wide progress to federal regulators.

Massey must implement a series of detailed new pollution control plans, and pay an escalating scale of fines - starting at a minimum of $1,000 for the first citation - for future water pollution violations.

Company officials must contract for a variety of new independent compliance audits, start a new program to inspect and maintain slurry pipelines and hire a special contractor to implement many of the settlement's requirements. The company must also design a new series of databases and warning systems to track violations, report those violations to management and correct the underlying problems. Periodic reports of these efforts must be filed with federal regulators.

As part of the settlement, Massey also agreed to perform 20 water quality improvement projects along 25 miles of the Little Coal River, and to set aside 200 acres of riverfront property as protected from development.

The water quality improvement projects were designed two years ago as part of a previous settlement with the state Department of Environmental Protection. The DEP settlement required the projects to be designed, but not actually implemented.

In April 2006, the DEP finalized a deal through with Massey settled hundreds of state water pollution violations for $1.4 million in fines.

Later, it turned out that DEP officials had for years not been reviewing water pollution reports filed by Massey - and the rest of the coal industry - and therefore allowed mine operators to avoid thousands of citations and an unknown amount in monetary penalties.

Several environmental groups initially sought to intervene in the government's lawsuit. Those groups did not oppose the settlement, and praised federal officials for taking action against Massey.

"For too long, state agencies have failed to prevent these kinds of violations," wrote Earthjustice lawyer Steve Roady, who represented the citizen groups.

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