This article originally provided by The Charleston Gazette

August 31, 2002

Massey spills in Boone bring criminal charges

By Ken Ward Jr.
STAFF WRITER

Two Massey Energy subsidiaries were charged Friday with criminal Clean Water Act violations related to blackwater spills into Boone County streams.

Independence Coal Co. and Omar Mining Inc. were charged in documents filed in U.S. District Court in Charleston.

Each company could face a fine of $200,000 and probation for up to five years.

Both companies were charged in documents known as informations, rather than with grand jury indictments. An information typically means that a plea agreement is likely in a federal criminal case.

The charges stem from leaks from Massey operations into Robinson Creek during June and August 2001, according to court records.

Independence was charged for a June 18, 2001, leak of blackwater from its Liberty Processing Plant south of Uneeda, Boone County.

In court filings, Assistant U.S. Attorney Miller A. Bushong III stated that the leak triggered a sump pump.

“The sump pump diverted the wastewater into a series of sediment control ponds and ditches, and the wastewater eventually discharged into Robinson Creek,” Bushong stated.

State Department of Environmental Protection inspectors tested the discharge. They found it contained 27,000 milligrams per liter of total solids. Under its Clean Water Act permit, Independence was required to limit its discharge to 70 milligrams per liter of solids.

Under the federal Clean Water Act, it is illegal to discharge pollution into a stream except in accordance with a water discharge permit.

Prosecutors allege that, by exceeding their permitted limits, Independence and Omar committed crimes.

Omar Mining was charged in relation to an Aug. 12, 2001, incident when the company, “began pumping water from an inactive mine because the water had risen to above permitted levels.”

“From on or about August 12, 2001, to on or about August 22, 2001, Omar Mining Inc. pumped wastewater out of the above-referenced inactive mine to a stormwater control pond previously used to remove metals, including manganese, from waste water,” prosecutors alleged in court filings.

“After the wastewater mixed with sediment in the pond, Omar Mining Inc. discharged the wastewater into Robinson Creek,” they alleged.

DEP inspectors found that the discharge contained 85 milligrams per liter of solids, and 30 milligrams per liter of manganese. Omar’s permit limited it to 70 milligrams per liter of solids, and 4 milligrams per liter of manganese.

Both incidents were also cited by DEP inspectors, and were among a series of violations that led the state to suspend permits for several Massey subsidiaries.

In the Independence case, DEP inspectors concluded that the sediment ponds through which the company routed the wastewater were not designed to handle such heavily silted water.

During an enforcement hearing, company representative Jim Gay testified that the company learned of the problem during the midnight shift, and should have shut the plant down.

Gay conceded that the company decided instead to run coal for the rest of the shift and “let the maintenance crew worry about the problem the next day,” a state enforcement order found.

In April, Matt Crum, director of the DEP Division of Mining and Reclamation, suspended the preparation plant permit for 16 days. On Aug. 13, the state Surface Mining Board reduced that suspension to 12 days.

A DEP enforcement hearing, which could lead to a suspension order, is pending for Omar Mining.

The criminal cases filed Friday were investigated by the Criminal Division of the U.S. Environmental Protection Agency, with technical assistance from the DEP and the EPA Office of Regional Counsel in Philadelphia.

Massey’s blackwater discharges have brought federal enforcement action before.

In September 2000, Massey agreed to pay nearly $26,000 in fines for illegal blackwater discharges from its Elk Run Coal Co. and Goals Coal Co. subsidiaries.

Elk Run was cited following leaks in February and March 1999 of 1,500 gallons and 2,200 gallons, respectively, of blackwater from its preparation plant at Sylvester, Boone County, into Little Elk Creek.

Goals was cited after an overflow of coal refuse slurry from the company’s Naoma preparation plant discharged blackwater into the Big Coal River.

In January, EPA proposed to fine Elk Run $27,500 for building a dam in the Big Coal River near Sylvester without first obtaining a permit.

Officials from Massey could not be reached for comment late Friday afternoon.

Over the last few months, Massey CEO Don Blankenship has repeatedly blamed his company’s regulatory problems on West Virginia Gov. Bob Wise and the state DEP. Blankenship alleges Wise and DEP are controlled by the United Mine Workers union. Massey is a mostly nonunion company.

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