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The EPA and the U.S. Department of Justice (DOJ) recently announced a settlement with one of the nation’s largest coal companies that includes an estimated $200 million for pollution prevention and systems and programs and a civil penalty of $27.5 million, the largest penalty in the history of Section 402 of the CWA.
The settlement includes operations in five states, Kentucky, Pennsylvania, Tennessee, Virginia, and West Virginia, and covers approximately 70 active mines and 25 processing plants. During the investigation, the EPA documented at least 6,289 violations of National Pollutant Discharge Elimination System (NPDES) permits issued pursuant to Section 402.
In its complaint, the government alleged that between 2006 and 2013, the company and its 66 subsidiaries routinely violated limits in 336 of its CWA permits issued by states and also were found to have discharged pollutants without a permit. The discharge violations included iron, pH, total suspended solids, aluminum, manganese, selenium, and salinity, and the violations occurred at 794 different discharge points. The EPA also stated that monitoring records showed that on many occasions, pollutants were discharged in amounts that were more than double the permitted limit.
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According to the EPA, surface mining can significantly impact the environment and human health through its discharges. For example, sediments discharged to waterways can cause loss of wildlife habitat, destroy fish spawning beds, and directly result in fish kills. Selenium at high levels is toxic to fish and birds, bioaccumulates in the environment and, at higher levels, is also toxic to humans. Increased salinity also directly impacts freshwater aquatic organisms that cannot adjust to higher or fluctuating levels of salinity resulting from mining operations discharges.
In response to the settlement, the company agreed to implement extensive measures to correct NPDES violations and prevent future pollution, including building and operating treatment systems to control salinity and selenium discharges within permit limits, instituting an improved, corporatewide environmental management system, conducting regular and consistent compliance audits, conducting treatment system audits, upgrading electronic tracking and reporting of all NPDES permit exceedances, auditing tracking and reporting systems, and training all employees. To ensure the injunctive relief stays on track, a third party will audit all of the activities required under the settlement. The EPA also stated that should the company have future violations, it will be required to pay stipulated penalties that may be increased and, in some cases, doubled for continuing violations.
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The EPA anticipates that the injunctive relief provided by the settlement will drastically reduce discharges of dissolved solids by more than 36 million pounds per year, while also lowering discharges of metals and other pollutants by approximately 9 million pounds per year.
According to the settlement, co-plaintiff states West Virginia, Pennsylvania, and Kentucky will share the civil penalty with the United States. The federal government will receive half of the penalty and the other half will be divided between the co-plaintiffs based on the number of violations in each state as follows: West Virginia will receive $8,937,500, Pennsylvania, $4,125,000, and Kentucky, $687,500.