West Virginia environmental regulators have renewed a permit on which a mine cleanup violation has gone unabated in Boone County for nearly a year and a half, drawing the ire of Southern Coalfield environmental health advocates.
The state Department of Environmental Protection earlier this month issued a five-year renewal of Lexington Coal Co. LLC’s permit for the Twilight MTR Surface Mine, near Twilight. The DEP issued nine notices of violation to Lexington since July 2021 for what the agency said was the company’s failure to meet backfilling, grading and drainage control requirements and avoid soil contamination.
The agency has extended a violation it issued Lexington for failing to reclaim sections of highwall in July 2021 on 17 occasions, allowing the company more time to abate the violation. Highwall is the unexcavated face of exposed rock or soil and coal in a surface mine.
Vernon Haltom, executive director of Coal River Mountain Watch, a Raleigh County-based nonprofit that is against mountaintop removal and other surface mining, said the DEP’s decision to renew the permit “defied logic†and “contorted the law.â€
“[There is] no legal justification and no end in sight,†Haltom said in an email.
DEP spokesman Terry Fletcher cited state code governing permit revision and renewal, and said the agency determined that the application for the reclamation-only site is “in conformance with†the code provisions.
The code Fletcher cited — Chapter 22, Article 3, Section 19 — places the burden on opponents of permit renewal upon an application unless, in part, the surface mining operation isn’t in compliance with applicable environmental standards. State code also gives regulators leeway to find that “additional revised or updated information as required†had not been provided.
“The existing reclamation on the site looks more like an abandoned, post-apocalyptic, four-square-mile parking lot than an Appalachian forest,†Haltom said.
Lexington could not be reached for comment for this report.
DEP records say Lexington stopped reclamation activities in June, after the agency already had extended the violation 11 times. That prompted the agency to order Lexington to immediately place reclamation equipment in operation and maintain reclamation activities to avoid further enforcement action.
Yet, Lexington didn’t resume reclamation work until this fall, alternating one piece of equipment between two adjacent permits to perform similar reclamation, according to DEP records.
Lexington renewed an advertisement for blasting on the reclamation-only permit site in the past month, according to the DEP.
DEP permit supervisor David Wagner told exasperated objectors to the proposed permit renewal during a conference the agency held last month to answer questions and take comment on the application that the agency could keep extending the violation if the permittee showed progress toward abatement.
“I think it’s very clear that this company doesn’t have the equipment on hand to do this work that’s necessary,†Sierra Club senior organizer Alex Cole said during last month’s virtual conference. “I’m just wondering how long the DEP’s going to kick this can down the road.â€
Coal River Mountain Watch had urged the DEP to deny the permit renewal, fearing that blasting onsite would allow hazardous dust to exit the permit boundary into surrounding communities.
Stories you might like
- W.Va. reps back GOP megabill projected to cost jobs, sap power for millions of homes
- 'Can't afford it': APCo, WPCo $250M rate hike request challenged at public hearings
- Gutting of NIOSH mining research, other units endangering workers, unions tell court
- Morrisey, DEP and developer panned by residents at meeting on expected data center
Lexington has been a chronic violator of environmental standards throughout the Twilight mining complex on the border of Boone and Raleigh counties and beyond, according to the DEP.
The DEP has suspended two other Lexington mine permits in the area in recent months.
The first suspension order was for the Crescent No. 2 Surface Mine in September after violations that included lack of sediment control, mining that caused hillside areas to slide and allowing runoff drainage into Matts Creek.
The second suspension order was for the Twilight III-A Surface Mine permit in October after violations that the DEP said caused erosion resulting in unpermitted sediment entering an unnamed tributary of James Creek’s left fork, and an eroded hillside and stream channel bed outside the permit area.
Last month, the DEP made public a $97,570 penalty it had issued to Lexington after finding the company violated a water pollution control permit for active coal mines in the Coal River watershed of Boone County.
The DEP renewed a mine permit for the Twilight III-A Surface Mine on April 1, even after it had found more than 40 violations across four of the company’s permits in the watershed since the start of 2021.
Just three days earlier, the DEP had issued letters to Lexington notifying the company that it was delinquent in paying two $22,500 penalties and was prohibited by a state legislative rule from issuing any permit or permit revision to the company as long as the civil penalties remained delinquent.
“[I]t seems like the agency would have extra scrutiny and extra reason to set the bar higher and hold this company to a higher set of accountability and expectation than has been done in the past,†West Virginia Rivers Coalition Executive Director Angie Rosser told the DEP during last month’s conference.
Lexington’s outstanding obligations aren’t just environmental. The company is listed as the operator of over 160 mines that had amassed $233,000 in federal mine-safety fine debt as of October, according to Mine Safety and Health Administration data uncovered by the Gazette-Mail in a Freedom of Information Act request.
In 2017, Alpha Natural Resources announced that it had closed a deal with Lexington to transfer mostly nonactive coal assets in Kentucky, Tennessee and West Virginia to the latter company. The announcement noted that Lexington would receive $199 million in cash and $126 million in installment payments to aid in fulfilling bonding, reclamation, water treatment and other obligations — along with 250 permits and bonding representing $192 million.
The transaction followed a 2015 bankruptcy restructuring for Alpha Natural Resources. In 2016, Alpha struck a $325 million deal with the DEP to allow for bonding and reclaiming all of Alpha’s legacy liability sites and active operations in West Virginia. Alpha had been self-bonded, creating financially daunting obligations that it got out of via its deal with Lexington.
Federal law mandates that coal companies restore land they disturbed during mining. Bonding is supposed to cover the cost of cleanup.
But five years after the deal between Alpha and Lexington was announced, Haltom has concluded that Lexington “bit off more than they could chew†in taking on Alpha’s permits.
The West Virginia Secretary of State’s Office lists Pikesville, Kentucky-based Lexington’s manager as Jeremy Hoops, son of Jeff Hoops, who stepped down as CEO of mining companies Blackjewel and Revelation Energy as part of a 2019 bankruptcy deal.
CLICK HERE to follow the ÂÒÂ×ÄÚÉä Gazette-Mail and receive
