On Jan. 9, West Virginia regulators issued a prominent coal company 35 letters demanding payment of delinquent civil penalties totaling $420,528 across 31 permits.
In its letters, the West Virginia Department of Environmental Protection warned the Lexington Coal Co. that the agency is barred under a state rule from issuing any permit or permit revision to the company as long as any civil penalty remains delinquent.
Three days later, the DEP renewed a Lexington surface mine permit on which Lexington has chronically racked up environmental violations and is delinquent on penalty payments.
The DEP renewed the permit for Lexington’s Crescent #2 Surface Mine in Boone and Raleigh counties after it issued two letters on Jan. 9 demanding payment of delinquent civil penalties totaling $5,562 to Lexington on that permit. The agency also issued Lexington a show-cause request on the permit on Jan. 2, mandating the company to “show cause†why the permit shouldn’t be suspended or revoked.
They cited five cessation orders for failure to abate violation notices, failures to submit surface water monitoring analyses for four quarters and failures to maintain sediment control structures that resulted in damaged and washed out barriers.
The permit has drawn 58 notices of violation and cessation orders from the DEP since March 2021 for wide-ranging environmental infractions reported by the agency. The violations included failure to provide proper public notice of blasting activities, mining that caused hillside areas to slide and allowing runoff drainage into Matts Creek.
The DEP may issue cessation orders for a surface mine operation if it finds the operation creates an imminent danger to public health or safety or can be reasonably expected to cause significant imminent environmental harm.
The renewal for the permit, which covers over 1,100 acres 3 miles southeast of Twilight, has drawn the ire of environmental and community advocates who say the move is evidence of a toothless DEP.
“The [DEP] repeatedly contradicts itself,†Vernon Haltom, executive director of Raleigh County-based surface mining opponent group Coal River Mountain Watch, said. “It issues violations, fines, delinquency letters, cessation orders, show-cause orders ... all with warnings that there will be serious consequences if Lexington fails yet again to comply. Then it grants permit renewals as if everything is just fine.â€
“It’s yet another example of the state government worshiping at the feet of King Coal,†concluded Jonathan Perry of Poca, who works in medical center lab administration.
DEP’s permit renewal explanation
When asked for an explanation of the decision, DEP spokesman Terry Fletcher said Tuesday a permit renewal isn’t the issuance of a new permit or a significant revision to an existing permit.
DEP officials contended during a Dec. 14 virtual meeting on the permit renewal application they have little statutory recourse to deny Lexington’s request, despite the long string of penalties on the permit.
“With the Legislature in session, it might be time to push for reinforcement or a clearer law in what the DEP should do with this type of repeat violator,†Perry said.
The West Virginia Secretary of State’s Office lists 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.
Officials at Lexington could not be reached for comment.
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The company hasn’t submitted any payments in response to the Jan. 9 notices, Fletcher said in an email Tuesday, adding, “Lexington is now considered in delinquency.â€
Fletcher said the violations have been entered in the Applicant Violator System, an automated information system that aids the federal Office of Surface Mining Reclamation and Enforcement in making permit eligibility determinations.
DEP: Past Lexington oversight an ‘anomaly’Lexington’s violation history goes beyond the Crescent #2 Surface Mine.
The DEP extended a violation notice issued for a failure to reclaim highwall at the company’s nearby Twilight MTR Surface Mine 25 times from August 2021 to August 2023. The DEP renewed the company’s permit for the mine in January, despite objections from environmental advocates.
In July, Coal River Mountain Watch, joined by environmental groups Appalachian Voices and the Sierra Club, requested the Office of Surface Mining Reclamation and Enforcement review the DEP’s oversight of the Twilight MTR surface mine.
The Office of Surface Mining Reclamation and Enforcement, or OSMRE, issued a 10-day notice on Aug. 8, telling the DEP in a letter that a federal inspection would occur and “appropriate enforcement action†would be taken if the latter agency didn’t act to cause the violation to be corrected.
Under a 10-day notice, which the environmental groups had requested, the OSMRE may alert a state regulator about a potential violation, giving the state authority 10 days to respond.
The DEP said in an Aug. 25 letter to the OSMRE’s ÂÒÂ×ÄÚÉä field office that the extension had been “erroneously granted†and wasn’t in accordance with DEP Division of Mining and Reclamation policies.
The DEP noted that it had modified the violation notice to a cessation order on Aug. 24, a day earlier, and called the extended violation “an anomaly that will be corrected.â€
In October, the DEP issued 16 proposed civil assessment penalties of $22,500 each to Lexington across 14 permits in Wyoming, Boone, Raleigh, Mingo, Nicholas and Logan counties in response to cessation orders for violations dating back to June 2023. The permits included the Crescent #2 and Twilight MTR surface mines.
Fletcher previously said Lexington’s delinquent amount exceeded $450,000 as of Dec. 7.
Environmental advocate: DEP should ‘try following through’
Franklin, Tenn.-based Indemnity National Insurance Co. had issued Lexington four bonds totaling $3.28 million for the Crescent #2 Surface Mine permit, according to the DEP’s show-cause order issued to Lexington for the permit.
Federal law mandates that coal companies restore land they disturbed during mining. Bonding is supposed to cover the cost of cleanup.
Alex Cole, senior organizer for the West Virginia chapter of the Sierra Club, raised concern during last month’s meeting on the permit renewal application that Lexington might lack the financial ability to clean up after itself.
“Maybe [the DEP] should try following through on threatened consequences,†Haltom said Monday. “But right now, their actions speak louder than words, and those actions are to not actually hold Lexington accountable.â€
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