This article originally provided by The Charleston Gazette

October 28, 2003

DEP takes Massey to court over repeated spills

From staff, wire reports

The state Department of Environmental Protection announced Monday that it has sued three Massey Energy Co. operations over what the agency said were repeated water pollution and waste handling violations.

DEP lawyers filed the suits late last week against Independence Coal Co. and Omar Mining Co. in Boone County and Marfork Coal Co. in Raleigh County, the agency said in a news release. All three companies are subsidiaries of Massey Energy, based in Richmond, Va.

DEP Secretary Stephanie R. Timmermeyer called Massey’s violations “egregious,” and said her agency “is committed to utilizing all the operations available to deter operations who persistently pollute the waters of the state.”

The lawsuits are based on violations that occurred during 2001 and 2002, including several blackwater spills into tributaries of the Coal River.

Massey spokesman Jeff Gillenwater said he did not know of the lawsuits until The Associated Press asked for comment. Gillenwater said he did not know whether someone in the Richmond headquarters or in the field had been notified of the suits.

The DEP lawsuits are the most recent development in Massey’s patchy environmental record, and the state’s somewhat spotty record of going after the company.

In March, Independence Coal and Omar Mining each agreed to pay $200,000 in fines after they pleaded guilty to criminal Clean Water Act violations in federal court. Both companies were placed on probation for five years.

Earlier this month, U.S. Magistrate Judge Mary Stanley ordered an investigation into whether Independence had violated the terms of the probation order.

Independence had a 250,000-gallon spill Aug. 6 on Laurel Creek and a 50,000-gallon spill Sept. 10 on Pond Fork, according to DEP records.

On Friday, Stanley ordered Independence to appear at a Nov. 4 hearing prepared to address those spills and another that occurred on Oct. 21. Details of the most recent spill were not immediately available.

In next week’s hearing, the company should “propose such additional conditions of probation as may be appropriate,” Stanley said in an order filed in U.S. District Court for the Southern District of West Virginia.

Lawyers for DEP and Massey are also arguing at the state Supreme Court over the agency’s efforts to suspend several Massey permits for repeated violations of state mining and reclamation rules. In two cases being appealed by the agency, DEP saw its suspension of Massey permits tossed by circuit judges.

Earlier this month, DEP settled a lawsuit it filed against Massey subsidiary Martin County Coal Co. over the 2000 failure of the company’s slurry impoundment and subsequent spill of millions of gallons of waste into the Tug Fork of the Big Sandy River. DEP got only a fraction of the money it had hoped for in that settlement.

The lawsuits filed Monday stemmed in part from a series of coordinated inspections by officials from DEP’s mining, waste management and water pollution offices.

“It was very helpful to bring all of those different perspectives together,” said Mike Zeto, DEP’s enforcement coordinator.

The suit against Independence focuses on alleged violations at the company’s Liberty Preparation Plant — the same facility named in the federal criminal charges — and its Jake Gore Refuse Impoundment and Justice Deep Mine.

The violations by Omar allegedly took place at the company’s Chesterfield Preparation Plant in Boone County. The Marfork suit focuses on alleged violations at that company’s mining complex on Little Marsh Fork in Raleigh County.

All three suits seek court orders to block further violations, fines of up to $25,000 per day of violation, and legal fees and costs.