Environmental groups and a Kentucky-based coal company are in talks to settle a federal lawsuit the groups filed in 2019 after a judge found that the company violated water pollution standards at two mines in Mingo County.
Judge Robert C. Chambers on Friday granted a request in the U.S. District Court for the Southern District of West Virginia from the groups and Lexington Coal Company to allow more time for settlement discussions. Late last month, Chambers ruled discharges from Lexington Coal’s Low Gap No. 2 and No. 10 mines caused environmental damage in surrounding waterways, violating state and federal water quality and surface mining standards.
The Ohio Valley Environmental Coalition, the West Virginia Highlands Conservancy, Appalachian Voices, and the Sierra Club filed a citizen suit in August 2019 against Lexington Coal Company, alleging federal Clean Water Act and Surface Mining Control and Reclamation Act violations at the two Mingo County mines. Lexington Coal Company has owned and operated since October 2017.
Citing discharge monitoring reports, Chambers concluded Lexington Coal Company violated selenium discharge permit limits at the No. 2 Mine from October 2018 through at least April 2020, and at the No. 10 mine from at least April 2018 through June 2020.
The environmental groups alleged Lexington Coal was discharging pollutants from point sources or outlets into Ben Creek, Pigeon Creek and their tributaries. Those creeks flow into the Tug Fork River, whose water quality the groups alleged has been degraded by the discharging.
Chambers did not address relief for the groups stemming from the partial summary judgment.
“After receiving partial summary judgment on liability, we’ll continue forward and work towards a resolution of this case that is in the best interest of the environment and communities that are affected by Lexington’s mining operations,” Ohio Valley Environmental Coalition Executive Director Vivian Stockman said.
“We’re pleased that the court agreed with us that the company is responsible for addressing this pollution,” Sierra Club spokesman Pablo Willis said. “Now that we’ve prevailed on our motion for partial summary judgment on liability, we look forward to securing a final resolution of the lawsuit that protects nearby communities and the environment.”
Neither Lexington Coal Company nor its attorney could be reached for comment.
Chambers rejected Lexington Coal Company’s argument that the federal court did not have jurisdiction because the suit was precluded by West Virginia Department of Environmental Protection administrative enforcement actions.
The judge noted orders containing findings that Lexington exceeded selenium discharge limits and ordered the company to submit a plan for compliance, but observed that neither order penalized the company or its predecessors for the violations.
Chambers concluded West Virginia’s administrative enforcement provisions are not comparable to the Clean Water Act because Lexington had the authority to reject a proposed consent order and avoid civil penalties at any point and for any reason, meaning that a section of the Clean Water Act that Lexington argued precluded the environmental groups from bringing a lawsuit against the company did not apply.
“The potential for abuse and manipulation of this authority undermines the purpose of the CWA, which does not require alleged violators to consent to penalties,” Chambers wrote.
The state Department of Environmental Protection could not be reached for comment.
Department of Environmental Protection Acting Communications Director Terry Fletcher said the department’s general counsel will review the ruling for potential impacts to any future enforcement actions taken by the agency and declined further comment.
Both the Clean Water Act and the Surface Mining Control and Reclamation Act have provisions allowing suits brought by citizens.
“We feel very strongly that citizen and community enforcement of pollution and environmental violations is really important,” Appalachian Voices Senior Project Manager Erin Savage said. “DEP certainly has a very important role as primary regulator, but if they don’t or can’t always find or address all of the problems … we feel strongly that it’s the role of community members to identify those problems and exercise their rights to make sure those problems are addressed.”