Upgrades will reduce discharges of total dissolved solids by more than 36 million lb per year (lbpy), and will cut metals and other pollutants by approximately 9 million lbpy in Kentucky, Pennsylvania, Tennessee, Virginia and West Virginia, said the U.S. Environmental Protection Agency (EPA). For 6,289 violations, the companies must also pay a $27.5 million civil penalty—the largest ever under CWA’s Section 402.

Between 2006 and 2013, the EPA logged violations for iron, pH, total suspended solids, aluminum, manganese, selenium and salinity at 794 outfalls, breaching 336 state CWA permits leading to excess discharges. Multiple pollutants discharged at more than double permitted limits on multiple occasions, added EPA officials.

The agreement covers 79 active mines and 25 processing plants, added Justice Department officials who were also involved. “The penalty sends a message such egregious violations will not be tolerated,” said Robert Dreher an assistant attorney general for the Environment Division.

The companies are required to build and operate systems curbing selenium and salinity limits, while implementing future compliance improvements. These include development and implementation of environmental management and periodic internal and third-party environmental audits.

The companies must further maintain a violation-tracking database and compliance at each outfall—while significantly improving response time. Third party experts will also be mandated to resolve discharges, while penalties will be assessed for further discharges subject to increases—in some cases, doubled for continuation.

For Alpha’s part, the decree “provides a framework to become fully compliant,” said Senior Vice President of Environmental Affairs Gene Kitts. “Our total water quality compliance rate for 2013 was 99.8%;” The complaint, noted Alpha, posed no human health risks.

“That’s a record, on more than 665,000 chances to miss a daily or monthly limit,” Kitts added. “But our goal is improving on the less than 1% of time limits were exceeded;” many measures were implemented ahead of the agreement, he noted.

Since 2006, Alpha’s size doubled through merges and acquisitions with other miners; affiliates, Kitts added, have amassed more than 700 state water discharge permits covering 5,000 discharge points.

The U.S. will receive 50% of the penalty; the rest will be divided under violations per co-plaintiff states with West Virginia, Pennsylvania and Kentucky receiving $8,937,500, $4,125,000 and $687,500, respectively. A consent decree in West Virginia’s Southern U.S. District Court is pending a 30-day public comment period and approval.  

In addition, the settlement resolves a prior 2008 settlement with Massey Energy, and applies to previously Massey-owned facilities and sites. Under the agreement, Massey paid $20 million for similar CWA violations, along with more than $1 million in penalties through 2016. Alpha bought Massey in Q2 2011 and, since taking over the company, has cooperated in settlement development.