Environmental violations, delinquent fines loom for coal firm seeking permit renewal

Lexington Coal Co. LLC is seeking a permit renewal from the Department of Environmental Protection for its Crescent #2 Surface Mine in Boone and Raleigh counties.

The DEP has issued Milton-based Lexington Coal 47 notices of violation and nine cessation orders since the beginning of 2021 for environmental failures at the Crescent #2 Surface Mine.

The cessation orders followed time extensions the DEP granted Lexington Coal for remediating what often have been sediment control failures in the permit area, which DEP records show is just over 3 miles southeast of Twilight and covers over 1,100 acres.

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.

• A July cessation order followed an April notice of violation extended four times and issued in response to what the DEP said was failure to control noncoal mining-related waste, resulting in petroleum spillage. The DEP said that Lexington Coal didn’t properly dispose of contaminated soil or maintain weather-protectant plastic covering soil piles.
• An August cessation order followed a March violation notice issued and extended six times after the DEP found Lexington Coal failed to maintain a sediment control structure.
• An October cessation order followed a September violation notice issued for what the DEP said was Lexington performing tree-cutting activities in an area for which it hadn’t posted required bond.

The DEP will hold a virtual informal conference to provide information and answer questions about the renewal application at 5:30 p.m. Dec. 14. The conference will be accessible at meet.google.com/sba-msyz-bdy or by dialing: 1 650-667-3352‬ PIN: 248 285 955‬#.

The Twilight zone and teeth shown

But Lexington’s environmental failures extend well beyond the confines of 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. The agency extended the violation notice throughout summer 2022 despite its records indicating Lexington had ceased reclamation activities from June until September.

In July, Raleigh County-based Coal River Mountain Watch, an opponent of surface mining in the area, joined by environmental groups Appalachian Voices and Sierra Club, requested that the federal Office of Surface Mining Reclamation and Enforcement review DEP’s oversight of the Twilight MTR Surface Mine.

Coal River Mountain Watch has said Lexington’s environmental violations have negatively impacted the local ecosystem.

The groups objected to what was then a 737-day extension of the violation notice, citing a state legislative rule holding that an operator must establish “by clear and convincing proof� that they should get an extension of a violation.

The Office of Surface Mining Reclamation and Enforcement, or OSMRE, issued a 10-day notice on Aug. 8, telling the DEP in a letter 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 the extension had been “erroneously grantedâ€� and wasn’t in accordance with DEP Division of Mining and Reclamation policies.

The DEP noted 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.� Climatic conditions shouldn’t have been deemed acceptable criteria in extending the violation, the DEP said.

But the DEP objected in the letter to the OSMRE’s measures leading up to the 10-day notice issuance, contending it had issued the notice prior to determining whether the agency was acting in good faith to correct the violation. The OSMRE had acted in “the exact opposite of the spirit of cooperative federalism,� the DEP said in the letter signed by Division of Mining and Reclamation Assistant Director Nicki Taylor.

Vernon Haltom, Coal River Mountain Watch’s executive director, said in an October statement it felt like “a significant win� to compel the DEP to “grow some teeth.�

But Haltom added that the DEP “has a long way to go� to gain the group’s confidence it would consistently and effectively enforce the law.

“Why did we have to point out to the experts that they were improperly granting violation extensions?� Haltom asked.

Nearly half-a-million dollars in delinquent DEP fines

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.

An October assessment balance sheet for Lexington showed the company owed $596,426 in penalties, of which DEP Chief Communications Officer Terry Fletcher said in October $284,890 was delinquent.

“The agency takes these violations seriously and is working diligently to ensure these fines are paid and sites are reclaimed in accordance with state and federal law,� Fletcher said in an email.

Lexington’s delinquent amount had grown to $459,466 as of Wednesday, Fletcher said, noting the increase was due to assessments clearing an administrative process.

Fletcher said discussions regarding a payment plan to address the amount were ongoing.

Last year, the DEP revealed a $125,000 settlement of a penalty order with Lexington for over 140 pollutant exceedances on three active coal mining water pollution control permits from October 2018 through March 2021.

More than two-thirds of the reported exceedances were for selenium. Recorded selenium levels often exceeded permitted limits by 100% or more, according to DEP data.

Selenium accumulation in larval aquatic insects and fish from mine-affected streams has long eaten away at the biodiversity of central Appalachian waters.

Toxic human exposure may occur when selenium levels build up in ecosystems via leaching from mining waste into aquatic systems and emissions from burning coal or other industrial activities, according to a report on selenium from the International Joint Commission, a bi-national border water management agency created by the United States and Canada.

Meanwhile, Lexington Coal has been in growing trouble over what a federal court has found to be long-running environmental remediation failures at its Low Gap Surface Mine No. 2 and No. 10 Mine in Mingo County.

Last month, U.S. District Judge Robert Chambers fined Lexington $50,000 and instructed a court-approved special master to develop a schedule with “firm deadlines� for the company to finish building biochemical reactor systems to treat selenium and achieve effluent limit compliance for selenium.

Chambers’ order found that Lexington had been “looking for shortcuts� in complying with environmental remediation obligations, providing a special master deficient information and brushing off his concerns regarding company deviations from industry standards.

Lexington already had drawn $69,500 in contempt fines from the court by the time it stayed accrual of a $1,500 per diem fine in September 2022 after the company had pledged to comply with pollution standards “as soon as possible.�

A March 2021 court order held Lexington liable for violating not only selenium limits in its water pollution control permit but federal law by discharging excessive levels of ionic pollutants at the Mingo County mines.

Chambers noted Lexington monitoring reports had shown the company was discharging selenium and ionic pollutants into tributaries of Ben Creek and Pigeon Creek.

Next steps

In a Nov. 30 order, Chambers added on top of his $50,000 fine, sanctions of $1,500 per day per missed deadline increasing by $500 per day every 15 days of noncompliance that follow for failure to comply with any deadline to the special master’s satisfaction.

The special master set March and May 2024 deadlines for operating with compliant discharges at two biochemical reactor systems and required historical performance and other monitoring data for the Low Gap No. 2 Mine by Friday.

Lexington Coal could not be reached for comment. A ÂÒÂ×ÄÚÉä-based attorney representing the company, W. Howard Sammons II, did not respond to a request for comment.

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.

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.

Haltom said in an interview last year that Lexington had “bit[ten] off more than they could chew� in taking on Alpha’s permits.

For now, Lexington’s bid to renew the Crescent #2 Surface Mine permit is before the DEP for consideration. The DEP has asked those seeking more information on the application or to submit written comments to contact David Wagner at David.R.Wagner@wv.gov or 304-792-7250.

“We need to see [the DEP] take the next steps of revoking Lexington’s permits, which they are well within their authority to do, instead of granting more permit renewals and permit revisions to further delay reclamation,� Haltom said.