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March 13, 2014
Mining company to pay largest NPDES fine

Investigators with the EPA, the U.S. Department of Justice (DOJ), and five coal mining states certainly did their homework in building a case against a U.S. mining giant and 66 subsidiaries for alleged violations of National Pollutant Discharge Elimination System (NPDES) permits. 

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The EPA claims that for the 2006 to 2013 period, it documented 6,289 violations of permitted limits for pollutants, such as iron, total suspended solids, aluminum, manganese, selenium, and salinity, and lists each and every one of those exceedances in a 204-page document.  According to the government, the violations occurred at 794 discharge points at 79 active mines and 25 processing plants in Kentucky, Pennsylvania, Tennessee, Virginia, and West Virginia. 

The outcome of the case is that the companies agreed to pay a $27.5 million civil fine, the largest ever for alleged NPDES permitting violations, and will also spend $200 million to install new and upgrade old water treatment systems and undertake management and training improvements, including third-party compliance audits.  The United States will receive half the civil penalty, and the other half will be distributed among the three states—West Virginia, Pennsylvania, and Kentucky—that were coplaintiffs in the case.  

Massey transfer

The government complaint mainly targets Alpha Natural Resources, Inc., one of the country’s largest producers of metallurgical and thermal coal.  The complaint also names Massey Energy, which Alpha purchased in 2011 for $7.1 billion.  Massey, the largest coal producer in central Appalachia, owned and operated the Upper Big Branch mine in West Virginia, where an explosion killed 29 miners in April 2010.  As part of the sale agreement, Alpha agreed to pay the $10.8 million civil fine the Mine Safety and Health Administration imposed on Massey as well as the $209 million in criminal penalties assessed by the DOJ. 

Poor treatment system performance

According to the government, the companies “routinely” violated limits in 336 of the state-issued NPDES permits, resulting in discharges of excess amounts of pollutants to hundreds of rivers and streams in the affected states.  Monitoring records showed that multiple pollutants were discharged in amounts of more than twice the permitted amount, says the government.  Most of the violations stemmed from the failure to properly operate existing treatment systems, install adequate treatment systems, and implement appropriate water handling and management plans, says the government.  Violations included discharges of pollutants without permits, the government adds. 

As part of a consent decree, Alpha must address its NPDES permit exceedances by conducting comprehensive audits, implementing corrective measures, and installing treatment technologies.  Specific remedial measures include an improved, corporatewide environmental management system, regular and consistent compliance audits, treatment system audits, upgraded electronic tracking and reporting of all NPDES permit exceedances, audits of tracking and reporting systems, and training of all employees.  All of these actions will be audited by a third party to ensure the injunctive relief is proceeding as required by the settlement. 

The government says the actions listed in the consent decree will reduce discharges of total dissolved solids by over 36 million pounds a year and metals and other pollutants by approximately 9 million pounds a year.

Alpha statement

In a statement, Alpha said that many of the consent decree measures were put into place ahead of reaching the agreement.  “For example, the company has already expanded its audit program and the enhanced environmental database was launched across the organization in January 2013,” said the company.  Alpha added that since 2006, it has twice doubled in size by acquiring or merging with other public mining companies, and its affiliates have amassed more than 700 state water discharge permits covering 5,000 discharge points.

Moreover, says Alpha, the company’s water compliance rate for 2013 was 99.8 percent. 

“That’s a strong record of compliance, particularly considering it’s based on more than 665,000 chances to miss a daily or monthly average limit,” said Gene Kitts, Alpha’s senior vice president of Environmental Affairs.

The government’s complaint, the consent decree, and the list of alleged violations

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