On May 10, 2007, the Environmental Enforcement Section (EES), on behalf of the U.S. Environmental Protection Agency, initiated a civil action against the Massey Energy Company and twenty-seven of its subsidiaries for violations of the Clean Water Act (CWA). At the time this action was initiated, Massey was the fourth largest coal company by revenue in the United States and owned and operated approximately thirty-one underground mines and sixteen surface mines in West Virginia, Kentucky and Virginia.
Investigation of the Massey subsidiaries to determine the nature and extent of violations involved reviewing a tremendously large volume of information, including:
- the terms and conditions of CWA permits, with modifications, issued to thirty-five or more Massey subsidiaries;
- thousands of pages of discharge monitoring reports for subsidiaries; and
- hundreds of inspection reports and notices of violation issued by the States to subsidiaries.
EES and Massey representatives conducted pre-suit settlement discussions. After extensive discussions, the parties were unable to reach a settlement and the government filed its complaint. The complaint alleged that:
- the coal mining and processing operations of Massey’s subsidiaries generated coal slurry, waste water, and other excess materials that contained such pollutants as iron, aluminum, manganese, pH and total suspended solids;
- discharge monitoring reports submitted by the subsidiaries reflected more than 60,000 days of violation between approximately 2000 and 2006; and
- additional violations reflected in state inspection reports, notices of violations issued to subsidiaries by the States of Kentucky and West Virginia, and discharges not pursuant to an authorized CWA permit.
Massey responded to our suit with a motion to dismiss, and later a motion to stay the proceedings. The Section, believing that Massey was merely attempting to delay the litigation from going forward, opposed the stay motion. In our response, we argued that Massey’s significant and long noncompliance history, as well as the need for prompt injunctive relief and imposition of a significant penalty to halt ongoing environmental harm, dictated against a stay. The Court denied the stay motion and directed counsel for the parties to proceed with preparing a case management plan.
Given the prospect of the litigation moving forward and Massey facing a civil penalty for an exceptionally large number of violations, the parties renewed settlement discussions and were able to promptly reach a settlement. On April 9, 2008, the Court approved the proposed Consent Decree.
Under the Consent Decree, Massey agreed to pay a $20,000,000 civil penalty -- the largest CWA penalty for effluent violations in EPA’s history. Massey also agreed to implement comprehensive injunctive relief including:
- providing state regulatory agencies with weekly reports of any effluent violations with a requirement to take specific steps to determine the cause of the violation and implement corrective measures;
- performing environmental audits at each coal mining facility and taking corrective action for noncompliance areas;
- providing annual training to persons with environmental management responsibilities;
- implementing 20 stream remediation projects on the Little Coal River; and
- hiring an Independent Monitoring Contractor, who will be responsible for submitting annual reports to EPA regarding Massey’s compliance with the terms of the Consent Decree.
The innovative and comprehensive injunctive relief measures achieved in the Massey settlement raise the bar for coal mining operations in Appalachia. After the Massey case, the Appalachian coal industry showed an increased awareness and prioritization towards CWA compliance.