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Alpha to pay $27.5 million in water pollution settlement

Read the deal: http://blogs.wvgazette.com/coaltattoo/ CHARLESTON, W.Va. -- Alpha Natural Resources will pay $27.5 million in fines as part of a deal that also requires the company to improve its water treatment practices to resolve what federal regulators say is "a long history of noncompliance with the Clean Water Act."

Bristol, Va.-based Alpha reached the proposed settlement with the U.S. Environmental Protection Agency, which in court records outlined nearly 6,300 violations of pollution limits at the company's operations across the Appalachian coalfields.

The EPA touted the deal as containing the "largest penalty in history" under the water-pollution permit section of the federal water-pollution law. It covers 79 active mines and 25 coal processing plants in West Virginia, Kentucky, Pennsylvania, Tennessee and Virginia.

"The unprecedented size of the civil penalty in this settlement sends a strong message to others in this industry that such egregious violations of the nation's Clean Water Act will not be tolerated," said Robert G. Dreher, acting assistant attorney general for the Justice Department's Environment and Natural Resources Division.

In a prepared statement, the EPA said the deal requires Alpha to spend $200 million "to install and operate wastewater treatment systems and to implement comprehensive, system-wide upgrades to reduce discharges of pollution from coal mines."

Neither the EPA's prepared statement nor court records in the matter provided a complete breakdown of those expenditures.

The 117-page agreement outlines steps that Alpha has agreed to take to better handle discharges of toxic selenium runoff from about a dozen mining operations across Southern West Virginia. Some of those actions include building new treatment facilities, but others would piggyback on treatment operations already underway as a result of previous court settlements with citizen groups. The deal also involves some locations where Alpha will deal with selenium by pumping contaminated water into old underground mines.

"This consent decree provides a framework for our efforts to become fully compliant with our environmental permits, specifically under the Clean Water Act," said Gene Kitts, Alpha's senior vice president of environmental affairs.

Kitts downplayed the extent of Alpha's violations, saying the company's "total water-quality compliance rate" -- considering multiple monitored pollutants at multiple outlets at all of its operations -- for 2013 was actually 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," Kitts said in a prepared statement. "But our goal is to do even better, and the consent decree provides an opportunity to proactively focus on improving on the less than 1 percent of the time that permit limits were exceeded."

Alpha's deal with the EPA comes a little more than two years after the company agreed to a $200 million settlement with U.S. Attorney Booth Goodwin over any potential Upper Big Branch Mine disaster criminal liabilities inherited by Alpha when it purchased Massey Energy Co. in June 2011.

The EPA settlement also comes in the wake of a $265 million settlement Alpha reached with shareholders who sued over the company's safety practices after the deaths of 29 miners at Upper Big Branch in April 2010.

The new EPA deal also comes six years after federal officials reached a similar, $20 million water pollution settlement with Massey.

That deal, though, did not include specific requirements for new treatment facilities and it covered more traditional pollutants, such as acidity, metals and solids -- not materials such as selenium, which is more controversial and more expensive to treat.

In court records filed as part of the settlement, federal officials make clear -- as environmental groups have argued for several years -- that water pollution violations at Massey didn't end because of the 2008 EPA settlement, and that Alpha had pollution problems at operations other than its "Massey legacy" sites.

The complaint filed by the EPA in U.S. District Court in Charleston notes multiple enforcement actions against Alpha -- and settlements of those actions -- by the West Virginia Department of Environmental Protection between 2008 and 2012.

"Alpha's subsidiaries have continued to discharge pollutants in violation of the conditions and limitations in their [water pollution] permits despite these administrative and judiciary actions," the EPA complaint states.

In its annual report to the U.S. Securities and Exchange Commission, filed last week, Alpha included a long list of pending pollution lawsuits filed against the company by various citizen groups and environmental organizations. In some instances, the DEP has taken action in response to those citizen suits, and the Tomblin administration has pushed legislation that mining companies have tried to use to avoid such citizen lawsuits.

One citizen lawsuit against Alpha that could be affected by the EPA settlement was set for trial next week in Huntington over what the company should have to do to remedy pollution violations at one operation and how much in fines Alpha should have to pay.

Derek Teaney, an Appalachian Mountain Advocates lawyer who has handled many of the cases against Alpha, said EPA settlements like the ones with Massey and Alpha are fine, as far as they go, but that federal officials need to take action that stop companies from getting permits that will cause water pollution problems.

"We've heard this all before," Teaney said.

In their own prepared statement, citizen groups indicated that they were "not impressed" by the new EPA-Alpha settlement.

"While it's important that Alpha pays for its violations, [the] EPA is still failing at its most important job; ensuring pollution like this doesn't happen in the first place," said Mary Anne Hitt, director of the Sierra Club's Beyond Coal Campaign. "If we've learned anything from the coal chemical spill in West Virginia and the coal ash spill in North Carolina it's that strong and proactive up front enforcement of our clean water protections is paramount. Levying fines after the fact does nothing for the communities and waterways already harmed."

The Alpha settlement is subject to a 30-day public-comment period and approval by the federal court.

Reach Ken Ward Jr. at kward@wvgazette.com or 304-348-1702.


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