EPA and Alpha Natural Resources Enter Into Clean Water Act Consent Decree – $27.5 Million Civil Penalty Is Largest Ever Under NPDES Permit Program
EPA recently announced that it had entered into a consent decree resolving thousands of alleged Clean Water Act National Pollutant Discharge Elimination System (NPDES) permitting violations by Alpha Natural Resources. The Consent Decree, entered into on March 5, 2014, must be approved by the U.S. District Court for the Southern District of West Virginia following a 30-day public comment period. If approved, the settlement will require payment of the largest civil penalty in the history of the Clean Water Act NPDES permit program. According to EPA’s complaint against Alpha and its numerous subsidiary companies, the coal mining companies violated the limits of their NPDES permits on over 6,000 occasions from 2006 to 2013. In addition to the civil penalty, the consent decree requires the installation of treatment systems aimed at addressing selenium and salinity in certain discharges, and requires enhanced monitoring procedures. EPA has estimated that the cost of these remedial measures will total approximately $200 million. Half of the civil penalty under the consent decree will be paid to the federal government, while the other half will be paid to the states of West Virginia, Pennsylvania, and Kentucky.
The size of the settlement is driven in large part by the size of Alpha’s organization, which includes over 100 operations in five states. Due to the nature of mining operations, which typically contain many outfalls subject to NPDES permits that in turn require frequent sampling and reporting of discharges, the mining industry is at particular risk of NPDES permit liability, even when companies take significant efforts to remain compliant. In its own press release regarding the settlement, Alpha noted that despite the large number of alleged violations resolved by the consent decree, its mines meet their discharge limitations over 99 percent of the time. This settlement therefore illustrates the difficulty of maintaining 100 percent compliance with NPDES permits, as well as the substantial potential for NPDES permit liability faced by coal mine operators and other heavily-regulated industries.
To view a complete PDF of the Environmental Letter March 2014 Issue, click HERE.