Jan 12 - McClatchy-Tribune Regional News - Ken Ward Jr. The Charleston Gazette, W.Va.


Two years ago, Massey Energy agreed to a record-setting $20 million Clean Water Act settlement with the U.S. Environmental Protection Agency. Federal officials said the deal would force Massey to change the way it does business.

Now, lawyers for the Sierra Club and three other environmental groups say Massey is violating its water pollution discharge limits more often than it did before the EPA settlement. Late last week, the groups threatened to sue Massey over its continuing violations.

"Remarkably, Massey's violations have grown more frequent after the settlement with EPA than they were before EPA brought its enforcement action," said the formal notice of intent to sue sent to Massey by the Sierra Club, the Ohio Valley Environmental Coalition, Coal River Mountain Watch and the West Virginia Highlands Conservancy.

Specifically, the notice alleges that between April 1, 2008, and March 31, 2009, Massey violated its effluent limits at its various operations at least 971 times, and accrued 12,977 days of violation during that 12-month period.

 When the EPA and the U.S. Department of Justice sued Massey, in an action that resulted in the $20 million settlement, they alleged more than 60,000 days of violations over a six-year period, or about 10,000 days of violations per year.

"Massey has both a legal and moral obligation to protect streams and drinking water supplies in the communities where it operates," said Jim Sconyers of the Sierra Club's West Virginia Chapter.

"Their permits are not just pieces of paper -- they are solemn commitments to protect the waters and people of West Virginia," Sconyers said. "Unfortunately, the company has shown time and again that it is unwilling to take its obligations seriously."

In a prepared statement Monday, Massey said it had just received the legal notice and was reviewing the allegations.

Massey said, "On first review, the data and conclusions in the notice appear to be significantly incorrect." Massey did not explain what was incorrect, but said its compliance rate is "well above 99 percent."

"The threatened suit is but another attempt by out-of-state extremists to attack the coal industry, which works hard to provide domestic energy and domestic jobs," Massey said. "The company is evaluating its legal options with respect to the inaccurate statements from these groups."

Environmental groups based their notice of intent to sue on quarterly reports the EPA settlement requires Massey to file. Those reports list violations of monthly average and daily maximum pollution discharge limits contained in Massey's Clean Water Act reports.

When they settled their lawsuit with Massey, EPA officials predicted the deal would cause Massey's "level of violations ... to go significantly down." EPA officials cited the fines, new pollution monitoring requirements and the threat of automatic penalties for additional violations.

EPA officials did not immediately respond to questions about what -- if any -- actions the federal government had taken in response to Massey's continuing violations.

Under the Clean Water Act and the federal strip-mining law, citizens can file their own lawsuits against companies seeking civil penalties and court orders to stop violations. Civil penalties in such cases are paid to the federal government, but citizen groups can seek reimbursement of legal fees and costs.

Reach Ken Ward Jr. at kward@wvgazette.com or 304-348-1702.

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