Environmental Enforcement as a Shield Rather than a Sword: How Environmental Injustice Resulted from Increased Coal Mining Violations After a Settlement with the Environmental Protection Agency

Introduction

The Executive Office of the President has tasked federal agencies to address environmental justice in minority and low-income populations. Appalachians suffer from disparate environmental pollution from coal mining and mountaintop removal (MTR) mining. Appalachians live near blasting sites for MTR mining, where particulates from diesel truck traffic affect the environment and human health.1 Discharges from valley fills add illegal quantities of pollutants to water bodies and forever alter stream form and function.2 Acid mine drainage has also been an ongoing problem in the region, destroying aquatic life in streams. A host of pollutants damage natural streams within Appalachia, such that those streams cannot support aquatic life, human health, or uses of drinking water.3 Appalachians also suffer from widespread poverty4 and poor health5 in mining areas. Appalachia clearly qualifies for focus on environmental justice.

The Environmental Protection Agency (EPA), through the Department of Justice (DOJ), prosecuted one habitual violator across its entire operations in West Virginia and Kentucky, which resulted in a settlement with the company. However, EPA has failed to follow up to ensure that conditions improved at the mine sites. Instead, the mines continue to illegally pollute, even to the point where the mines pollute more than they did before the settlement. In fact, new mine sites are now illegally discharging pollutants, and EPA has done nothing.

Discussion

EPA is ordered to make environmental justice a priority. On February 11, 1994, President Clinton signed Executive Order 12989, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations.”6 This Executive Order instructed federal agencies to “make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations.”7 EPA was included as an agency to incorporate environmental justice in its programs.

On August 4, 2011, President Obama made a further commitment to environmental justice. In a press release, the president announced that federal agencies had agreed “to develop environmental justice strategies to protect the health of people living in communities overburdened by pollution and provide the public with annual progress reports on their efforts.”8

Appalachia and West Virginia in particular are populated by some of the oldest,9 poorest,10 and unhealthiest11 residents in the nation. Coal mining areas account for these significant poverty rates.12 In comparing the poverty rates of 403 Appalachian counties, Hendryx found that mining and MTR areas have higher rates of adult and child poverty than non-mining areas, with MTR areas accounting for the highest levels of both adult and child poverty.13 Hendryx also found that the mortality levels per 100,000 residents was higher in mining and MTR than non-mining areas, with MTR mortality levels the highest.14 Thus, according to Executive Order 12989 and President Obama's commitment to environmental justice, Appalachian areas with mining should be areas of high concern because of both the low-income and high mortality statuses.

U.S. v. Massey as Environmental Injustice in Appalachia

On April 10, 2007, EPA filed a complaint against Massey Energy Corporation and 27 of its corporate subsidiaries (collectively “Massey”) in the United States District Court for the Southern District of West Virginia, alleging the highest number of violations in the history of the Clean Water Act (CWA).15 From January 2000 through December of 2006, Massey had, through its own self-reported Discharge Monitoring Reports, violated the CWA approximately 4,633 times (combined monthly and daily exceedances) for 69,071 days of violations in West Virginia and Kentucky.16 West Virginia inspectors documented 534 exceedances during that time.17 Under the Surface Mining Control and Reclamation Act, which prohibits violations of the CWA and other surface mining actions, state and federal entities cited Massey 1,943 times, with 255 notices of violations for CWA violations.18 The states of West Virginia and Kentucky did not participate in the complaint or any aspect of the legal case.19

Simultaneously with the filing of the complaint, EPA submitted a consent decree, agreeing to settle the case with Massey for a total of $20 million dollars as a civil penalty. EPA also required Massey to “invest approximately $10 million to develop and implement a set of procedures to prevent future violations” through a computerized tracking system designed to prevent future compliance issues.20 Massey also agreed “to set aside 200 acres of riverfront land in West Virginia for conservation purposes and protection from future mining” and perform supplemental environmental projects.21 None of the civil penalty money went to the states of West Virginia or Kentucky, and it did not go directly into any projects to rectify the environmental harms caused by Massey. Instead, the money went into the General Fund of the United States Treasury.22

Under the terms of the consent decree, Massey agreed to comply with all state and federal rules and regulations and pay stipulated penalties for violations of the consent decree. Penalties ranged from $1,000 to $4,500 per day for violations. The consent decree also established stipulated penalties for violations of the reporting requirements. Those reporting requirements included noting which outlets exceeded permit limits and notifying the EPA within ten days of the exceedance, as well as the explanation of the reasons for the exceedance and the remedial steps to prevent future exceedances. Massey would also send quarterly reports to EPA updating its violation history.

The $20 million penalty, along with an alleged $10 million electronic enforcement program that Massey proposed to install to internally track violations, was designed and purported to the federal court to eliminate or reduce Massey's pollution. However, a review of the quarterly reports show that Massey (now Alpha Natural Resources, a successor company to Massey) has accrued more violations after the consent decree than before. Neither EPA nor the states have taken significant measures to enforce these CWA violations against Massey. Massey paid $20 million to essentially have unfettered discretion to pollute the streams of West Virginia and Kentucky indefinitely, with a legal bar against citizen groups to interfere while the existing consent decree is in place.23

Based upon filings in the case, court records show 2,505 separate violations in West Virginia from the time period of January 2000 through March 2006. Those violations include the illegal discharge thirteen separate pollutants, with the majority being manganese, total suspended solids (TSS), pH, iron, and aluminum (all with over 100 violations). A review of Alpha's quarterly reports filed from April 2008 to June 2012 show 2,775 violations (during a shorter period of time than in the initial lawsuit). Instead of reducing its violations, as EPA and Massey purported in the settlement, the company has increased its violation of the law.

Alpha has disclosed the illegal discharge of fourteen pollutants post-consent decree. Selenium is a new pollutant, which was not actually included as an enforceable permit limit in West Virginia until 2012 (in violation of the CWA and the West Virginia Pollution Control Act).24 Alpha's recent illegal discharges include manganese, TSS, pH, iron, aluminum (which has increased dramatically from 175 pre-filing violations to 1,262 violations post-consent decree), and selenium. All of those pollutants have over 100 violations. Alpha sites added 94 new illegal discharges of pollutants after the settlement for pollutants at mines that were not in violation of those pollutants prior to the lawsuit.

Not only has Alpha increased the number of violations, it has also added new mines that violate. In the complaint, 144 sites violated the CWA. After the consent decree, Alpha has reported 140 sites in violation. Of the sites, 53 sites stopped violating after the consent decree. However, 47 new mines violated that were not included in the original complaint, so it appears as though these are mines that began to violate post-settlement. Although some mines either improved to no violations or closed and completely stopped discharging, new Alpha mines began violating and violated even more significantly.

Under its $10 million electronic enforcement system, Massey was supposed to be able to track sites that habitually illegally discharged pollutants and report those to EPA. However, the author has tracked a large number of sites that have become habitual offenders, with EPA and Alpha doing nothing more than reporting the violations and receiving the data. In the time period of April 1, 2012 through June 30, 2012, Alpha reports Independence Coal WV/NPDES 1016890 as having two outlets with selenium exceedances. As of June 15, 2012, one had 38 consecutive exceedances, the other outlet had 18 consecutive exceedances. Jacks Branch Coal Company WV/NPDES 0093912 reported an outlet with 52 consecutive violations for selenium in that same time period.

Selenium is not the only pollutant of concern. Alpha reported Clear Fork Company WV/NPDES 1002384 as having 11 consecutive exceedances of aluminum for the period of April 1, 2012 through June 30, 2012. For the period of April 1, 2010 through June 30, 2010, Alex Energy WV/NPDES 1015362 had two outfalls with consecutive exceedances of iron. Outfall 26 had six and outfall 29 had seven consecutive discharges of illegal quantities of iron.

Whether the illegal discharge is in a consecutive status may be in the way that Alpha reports it. In at least 22 pollutants at the Alpha sites, the amount of violations increased after the settlement. As examples, Alex Energy WV/NPDES 1015362 illegally discharged three pollutants regularly: manganese (52 violations), iron (15), and aluminum (29). Marfork Coal WV/NPDES 1013301 had significant violations of TSS (33 violations), pH (8), iron (12), and aluminum (63). Peerless Coal WV/NPDES 1002040 illegally discharged aluminum 30 times after the settlement. Alpha's reports show that 21 sites routinely violate discharge limits in similar ways. These outfalls may not have technically been consecutive, but they were certainly habitual violations.

As for the stipulated penalties, very little has been paid by Alpha in the context of the thousands of violations committed by it. A review of Alpha's quarterly reports filed from April 2008 to June 2012 show that Alpha has paid $674,000 to the U.S. Treasury for 269 WV violations it deemed as designated as falling under stipulated penalties.25 A review of the reports shows that West Virginia inspectors have cited Alpha mines at least 320 times. The report does not include what penalty, if any at all, Alpha paid to the State for violations.

EPA'S Lack of Diligence to Massey is Inexcusable

EPA's role is to intervene and prosecute water quality violations when a state, like West Virginia, refuses to do so. In this case, EPA sought the high profile nature of a case, but then failed to follow through and make the company actually improve water quality. In fact, West Virginia water quality discharged by Massey mines has gotten worse since EPA's settlement. The $20 million settlement did little to improve the waters of West Virginia due to EPA's lack of diligence.

EPA's commitment to environmental justice commands that it enforce to benefit those who are the most vulnerable to pollution: the poor, those with low socioeconomic status, those with low education levels, and those who are unhealthy—the very profile of West Virginia. Instead, EPA has done nothing since the settlement, even though it faces thousands of company-reported violations of law. The longer Alpha discharges illegal quantities of pollutants, the longer the West Virginia environment and West Virginians suffer.26 As a matter of law and policy, EPA has determined that it will commit to environmental justice by protecting disadvantaged populations from disproportionate pollution. In the Massey/Alpha case, EPA has allowed mining sites to impose high levels of pollution upon those who can least bear it—the poor, uneducated, and unhealthy—West Virginians.

By not enforcing its own settlement and allowing continuous pollution, EPA has committed environmental injustice in two ways. First, EPA settled for a relatively low amount, given the amount of pollution. Second, instead of enforcing the consent decree, it left thousands of violations unabated and ongoing, leaving citizen groups to battle it out in federal court to try and find some degree of relief. It was EPA's environmental justice responsibility to follow-through with the settlement.

The author also wants to comment on the very nature of how EPA and DOJ have handled this case, post-consent decree. The author requested information on the required quarterly reports from Massey under the Freedom of Information Act (FOIA). The response took months to produce, even though the information should have been easily accessible in the DOJ's case file. The DOJ also failed to produce the Whole Effluent Toxicity (WET) testing reports that Alpha claims to conduct as a condition of the settlement. These testing reports could have shown whether Alpha's discharges were producing toxic conditions for several species of aquatic life.

The information provided was not in an electronic database (although that was a condition of Massey's alleged $10 million expenditure). Instead, the author received poorly copied and un-sorted sheets of violations. The author manually entered each violation reported by Massey into a database to process information for this article. A citizen layperson could not have been able to sort through the data to understand that Alpha is continuing to illegally discharge pollutants with even greater violations. One of the cornerstones of the CWA is to provide citizens with information about the water bodies in the environments where they live. Instead, citizens must rely upon a sluggish EPA, be sleuths to discover the information, or rely upon others to discover the information and publish it. EPA should complete the mission it started with Massey and force Alpha to comply with the CWA. EPA must provide information to the public. Anything short of that creates and continues environmental injustice in West Virginia.

Conclusion

This article provides an analysis of one high-profile case where EPA and the DOJ failed to protect low-income residents in Appalachia from the illegal discharges of pollutants. The $20 million settlement is meaningless because the violator continued to pollute, increased pollution, and added new sites and new pollutants in violation of the CWA with no repercussions from EPA. Alpha and EPA failed to easily provide information to citizens of the continuing pollution. Alpha attempted to use the settlement with EPA as a shield from citizens to file lawsuits for enforcement.27 When the time comes to discontinue the settlement, the court should refuse to terminate the consent decree on the grounds that the EPA and Alpha have utterly refused to meet the obligations under the terms of the settlement.

There are thousands of other instances of illegal coal mining pollution that EPA and the states have not addressed, causing the pollution to continue or citizens to enforce.28 In Central Appalachia, and West Virginia in particular, coal companies are making the plight of the poor, the uneducated, and the unhealthy even worse through illegal pollution. When mine sites illegally impose disproportionate pollution on disadvantaged populations with no legal ramifications, environmental injustice occurs.