Federal agreement doesn't protect Massey from citizen suits, groups say

CHARLESTON -– Massey Energy's clean water agreement with the government doesn't protect it from citizen suits, nature groups argue in federal court.

On July 23, the national Sierra Club and local groups opposed a motion to dismiss their suit against five Massey subsidiaries that own West Virginia coal mines.

The groups seek a court order ending discharges of aluminum, iron and other substances into public waters, plus more than $100 million in penalties.

Massey has pleaded that citizens can't sue it while the U.S. Environmental Protection Agency enforces a consent decree that EPA and Massey signed in 2008.

For the nature groups, Derek Teaney of Lewisburg responded that the suit aims to hold Massey to its water quality permits and not to the decree.

"A government consent decree cannot preclude citizens from seeking injunctive relief in a citizen suit for violations that are initiated, or that continue, after it is entered," he wrote.

"In essence, defendants are attempting to use the consent decree that resolved their unprecedented disregard for environmental law to immunize themselves from any future prosecution for their continued disregard for those laws."

He wrote that the decree "is devoid of any requirement that expressly or impliedly requires compliance with the permit limits themselves."

He wrote that violations are continuing, an that the decree did not require immediate compliance with permits.

He wrote that it did not contemplate permit modification to achieve compliance and that it did not require construction of treatment facilities.

The Sierra Club sued Massey subsidiaries in April, at federal court in Charleston. West Virginia Highlands Conservancy, Ohio Valley Environmental Coalition, and Coal River Mountain Watch joined the suit.

The nation's Clean Water Act allows citizens to enforce it if government doesn't.

The same four groups sued Massey subsidiaries in June, at federal court in Huntington, alleging illegal discharges of selenium.

Massey has asked U.S. District Judge John Copenhaver to consolidate the suits in his court at Charleston.

District Judge Robert Chambers presides over the suit in Huntington.

Copenhaver has set a scheduling conference on Aug. 27, and Chambers has set one on Sept. 27.