Coal Tattoo

When will Massey’s water pollution violations stop?


Well, Massey Energy Chief Executive Don Blankenship is at it again … writing letters to the editor wrongly arguing that the planet is cooling and  tweeting away his attacks on the federal government.

At the same time, a new legal action against his company has revealed that Massey’s water pollution violations have become more frequent since a record $20 million Clean Water Act lawsuit settlement with U.S. EPA.

As I pointed out before, when the settlement was announced, federal government lawyers predicted it would force Massey to clean up its act. Remember that the EPA lawsuit — alleging more than 60,000 days of water discharge violations over a six-year period — was hardly the first enforcement action against Massey. Among a long list of other such actions, two Massey subsidiaries had pleaded guilty previously to criminal violations of the Clean Water Act.

Massey’s response to the formal notice of intent to sue issued last week was interesting. They said that the numbers cited by environmental groups were “significantly incorrect,” and that “the company’s compliance rate is well above 99 percent.”

Understand that Massey has dozens of mining operations, many of them with multiple water pollution permits. Each of those permits has discharge limits for multiple pollutants. Those limits must be met on a daily and monthly average basis. So, it’s certainly possible that Massey’s compliance rate could be 99 percent, if it’s measured based on a percentage of those limits that are met over some period of time, but that company could still have thousands of days of violations. I’ve asked Massey officials to elaborate on exactly what they meant … but I haven’t gotten an answer.

One of the key parts of the settlement, meant to discourage future violations, was a provision that required Massey to pay automatic fines for further water quality violations.  These “stipulated penalties” ranged from $1,000 for the first violation of daily pollution limits up to $10,000 for the third consecutive and each subsequent violation of monthly pollution limits.

Deb Berlin, an EPA press officer, told me yesterday that since the deal with Massey was finalized two years ago, her agency has already collected nearly $500,000 in stipulated penalties for violations identified in quarterly reports Massey files with EPA.

Berlin also said:

EPA is aggressively monitoring Massey Energy’s compliance with the Clean Water Act and the Consent Decree entered in 2008.

Maybe so. But without some additional EPA action to require Massey to actually stop violating its pollution limits, what good are these stipulated penalties doing? Maybe that’s why the Sierra Club and other groups have put Massey on notice that they plan to file a federal court lawsuit to try to get a judge to take tougher action against the Richmond, Va.-based coal giant.

Jim Hecker of Public Justice, one of the lawyers for the citizen groups, told me yesterday:

Monitoring is not enforcement, especially when the violations continue at the same pace as before.  When companies only pay penalties for continuing violations without achieving compliance, they are simply paying for a license to pollute.