This article originally provided by The Charleston Gazette

January 20, 2008

DEP still behind on pollution monitoring

No citations or fines issued for mine water violations in late ’06, early ’07

By Ken Ward Jr.
Staff writer

When a federal government lawsuit over Massey Energy Co. water pollution violations hit the courtroom in May 2007, it was big news.

U.S. Environmental Protection Agency lawyers cited thousands of water permit problems, enough to amount to 28 violations per day over a six-year period.

Most of the federal government’s lawsuit was based on self-monitoring pollution reports Massey subsidiaries filed every month with the state Department of Environmental Protection.

But for nearly five years, DEP officials had not been looking at the reports. Inspectors didn’t print them out and read them. Enforcement staffers didn’t study them on computer spreadsheets.

And the problem wasn’t confined to Massey. DEP gave the entire coal industry a pass.

“The cop was clearly asleep for years,” said Pat Parenteau, an environmental law professor at the Vermont Law School. “It is really an indictment of the enforcement program.”

Despite efforts by DEP to improve, the agency is still about a year behind in reviewing the coal industry’s pollution reports, officials said last week. And the agency has not issued any citations or assessed fines for any violations discovered on reports it reviewed for late 2006 and early 2007.

“That doesn’t mean that we won’t,” said Jeff McCormick, the DEP mining division’s assistant director for enforcement. “It just means that we haven’t.”

Last week, the whole issue came up again, when EPA settled its lawsuit against Massey for $20 million in fines and the promise that the company will do much more to prevent future violations.

Environmental groups were quick to point out that federal regulators had stepped in to go after Massey for violations that DEP had not cited.

“Imagine letting the Bush administration be tougher environmental enforcers,” said Joe Lovett, a lawyer and executive director of the Appalachian Center for the Economy and the Environment. “It’s astounding that the state agency with the primary responsibility for enforcing the Clean Water Act didn’t do anything about this problem, and left it to the federal government.”

In the case of Massey, it’s not as if the state DEP has never taken any enforcement action.

Over the years, DEP inspectors have engaged in various running battles with the Richmond, Va.-based company, especially over a series of coal-slurry spills in the Coal River watershed. In April 2006, DEP Secretary Stephanie Timmermeyer approved a deal that settled hundreds of violations and five major state lawsuits against Massey for $1.4 million. Citizen groups harshly criticized the settlement, saying the fine was far too low.

But the EPA lawsuit revealed what DEP mining director Randy Huffman said was a “major hole” in the DEP’s program to regulate the coal industry.

Like most environmental laws, the federal Clean Water Act relies in large part on industry to regulate itself.

Every month, companies that hold pollution discharge permits must take samples, and analyze the amount of various pollutants in their discharges. The companies then file those reports with state regulators and, sometimes, with the federal government.

The reports are called Discharge Monitoring Reports, or DMRs. Experts consider them the most basic tool for enforcing water pollution limits that are meant to keep rivers and streams clean.

For a four- to five-year period, though, DEP officials stopped reviewing DMRs filed by coal companies. No one at DEP has been able to explain exactly why.

“For whatever reason, we were not getting it done,” Huffman said. “There was a glitch and they got off track with it.”

Huffman said that he found out about the problem when he took over the mining division in May 2005. He said he quickly told staffers to fix the situation.

The effort took longer than Huffman had hoped. But by mid-2006, the agency had written new computer programs to review DMRs and spit out letters warning operations when their reports showed violations.

It’s still not clear exactly how many violations DEP missed during the period it did not review DMRs. One effort by DEP to estimate the figure found more than 25,000 violations. Some agency staffers say that the number may be much larger. Others say the figure is smaller.

When the EPA-Massey settlement was announced last week, Huffman said that his agency had resolved its problem and was now reviewing coal industry pollution reports.

Huffman said that DEP has no plans to go back and cite companies for previous violations that weren’t discovered during the period when the agency was not reviewing discharge reports.

But, Huffman said, actions were being taken for new violations. He said he didn’t know how many violations the agency had found, or what kind of penalties had been assessed.

On Friday, McCormick said that in the last two years, DEP has run only three quarterly computer studies of coal industry DMRs. Those were for the third and fourth quarters of the 2006 calendar year and for the first quarter of the 2007 calendar year.

McCormick said he could not provide a figure for how many violations were listed in those three studies.

Operators with violations received letters notifying them of the problems, McCormick said, but no monetary penalties have been sought from any mining companies.

McCormick said that DEP’s current plan is to fine companies only when an agency inspector takes a water sample that shows a violation. No fines are being issued for violations on DMRs, he said.

“That practice negates the whole purpose of the self-monitoring system and makes it much harder to detect and deter a violation,” said Jim Hecker, environmental enforcement director for the group Public Justice. “It reduces the statistical likelihood of catching and punishing a violation, because inspectors are on site taking samples less often than the required permittee sampling frequency.”

To contact staff writer Ken Ward Jr., use e-mail or call 348-1702.