By Cindy Rank
Together with co-plaintiffs and the support of public interest lawyers from Appalachian Mountain Advocates and Public Justice, West Virginia Highlands Conservancy has successfully challenged any number of deficient coal mining regulations, permits and careless mining operations over the years.
Holding industry accountable through this type of litigation involves both correcting the problem to stop the pollution and assessing civil penalties for each violation. Federal law (the Clean Water Act and/or the Surface Mining Act in these cases) sets forth prescribed levels of monetary fines. If settlements can be agreed to by all parties involved and approved by the Court, some level of civil penalties can be directed to support of some third party’s related environmental protection work preferably close to the area where the damage has been done.
Whatever pollution and violations are involved and despite settlement agreements and court approved consent decrees constructed with the best of intentions, there is one common theme that runs through them all.
The “final” resolution is never quite ‘final’.
Whether due to poor planning, inadequate resolve and resources, bankruptcy, or just plain obstinacy, compliance is hard to come by and follow-through often requires constant vigilance, sometimes over the course of several years.
Two recent Court Orders out of the United States District Court for Southern West Virginia are examples of just how tenuous resolution in these legal actions can be.
KEYSTONE WEST VIRGINIA
On October 4, 2023, Judge Joseph Goodwin issued an Order in litigation that involves a complex of Keystone strip mines and valley fills that border Kanawha State Forest and discharge into nearby streams.
In the early 2000s Tom Scholl Mining initiated permits in the Rush Creek area that have troubled nearby residents and visitors to the forest for the past two decades.
The mines have a long record of violations and have been the object of comments, citizen complaints, and heated hearings through permit applications, renewals, change of ownership from Scholl, to Revelation Energy, then revocation by West Virginia Department of Environmental Protection, on through bankruptcy, and most recently reinstatement by DEP and transfer of ownership back to Scholl’s Keystone West Virginia.
West Virginia Highlands Conservancy, Sierra Club, and Appalachian Voices joined the Kanawha State Forest Coalition, a volunteer organization formed in 2014 to stop mountaintop removal mining on the Kanawha State Forest perimeter, in a lawsuit alleging Keystone Mining violated the Clean Water Act and the Surface Mine Act at its Rush Creek mines, allowing unpermitted discharges, discharging acid and other pollutants into nearby streams and failing to meet the monitoring and reporting requirements that are part of the mining permits.
In his Court Order Judge Goodwin agreed with much of the complaint and has granted civil penalties for those violations. The final assessment of penalties will be determined by the number and severity of the violations.
LEXINGTON COAL
On November 17, 2023 Judge Robert Chambers issued an Order in litigation filed in August of 2019 involving several Lexington Coal operations in Mingo County just West of Gilbert.
West Virginia Highlands Conservancy, Ohio Valley Environmental Coalition, Appalachian Voices and Sierra Club filed a complaint regarding selenium and ionic pollution August 6, 2019.
The Court found Lexington liable for the alleged violations of the Clean Water Act and the Surface Mining Act in March of 2021 and the back and forth since then has been somewhat futile including the Judge having to find Lexington in Contempt for not complying with Court orders on several occasions.
In the words of the Court, the record in this case presents “the disappointing chronicle of Defendant Lexington Coal’s environmental harm and failures to comply with the orders of this Court.”
Instead of Lexington Coal attempting to comply with its obligations in good faith, the company “appears to be looking for shortcuts and simply hoping disaster does not result.”
All are strong words from a judge who has been quite patient and restrained in light of the company’s contemptuous behavior.
In the November Order the Judge once again found Lexington to be in contempt, fined the company an additional $50,000 and set forth new and explicit directions setting forth specific deadlines and admonishing the company to cooperate with the Special Master appointed by the Court to oversee Lexington’s development and implementation of plans to control the pollution from the mine sites.
Endnote: Selenium and ionic pollution at issue in these and several other cases continue to impair some of the finest headwater streams in West Virginia. The tapestry of a healthy water rich West Virginia is unravelling with every stream that’s affected.