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.