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Reclamation planned

Pictured in this August photo is one of what Kanawha Forest Coalition members say are many surface coal mine reclamation failures at the Rush Creek mine complex near Kanawha State Forest. The West Virginia Department of Environmental Protection has reinstated reclamation-only mine permits for the area, but forest advocates and residents are concerned about the reclamation track record of both the agency and the permittee.

West Virginia environmental regulators have reinstated mine permits near Kanawha State Forest despite objections from nearby residents and forest advocates over the applicant owner’s history of environmental violations at the sites.

The state Department of Environmental Protection on Tuesday announced that it reinstated three surface mine permits that had been held by Revelation Energy, LLC to allow for reclamation in the Rush Creek area.

The terms of the approved permits for the new permittee, Keystone West Virginia, LLC, do not allow for further mineral removal from the site and require Keystone to submit a restoration plan to address all outstanding noncompliance within 30 days.

But Keystone’s owner, Tom Scholl of Jacksonville, Florida, has a track record of environmental violations and impacts in the Rush Creek area that concerns area residents and members of the Kanawha Forest Coalition, a volunteer group formed to stop surface mining around the forest perimeter.

“[B]oth Keystone and the DEP’s inspection and enforcement staff have a long track record of failure on these permits,” coalition member Chad Cordell said in an email. “Unfortunately, they’ve given us no reason to believe that anything will be different this time around.”

Scholl’s Keystone Industries, LLC transferred permits for the Rush Creek, Rush Creek No. 2 and Keystone Development surface mines to Milton-based Revelation Energy in 2013. Revelation Energy’s permits were revoked in October 2020, 15 months after the company and its affiliate Blackjewel LLC filed for Chapter 11 bankruptcy protection.

But prior to its permit transfers to Revelation, Keystone was issued 40 violation notices by the Department of Environmental Protection for sediment control and revegetation failures and exceeding water pollution limits.

The environmental violations continued under Revelation, further scarring the land and impairing the water near Kanawha State Forest.

The DEP has issued 177 violations on the permits totaling more than $175,000 in fines for Keystone and Revelation since 2007, according to agency data.

Rush Creek and its right fork and nearby Kanawha Fork were added to the state’s list of impaired streams in 2016.

“They’ve essentially killed Rush Creek,” Cordell said in August.

The DEP is pursuing cases against Keystone and Revelation in Kanawha County Circuit Court for collection of past penalties incurred under state water pollution law.

An attachment to Keystone West Virginia’s application dated June 1 acknowledged that water quality monitoring stopped when the permits were revoked in October 2020. All three permits have deficient vegetation, according to the document.

Keystone West Virginia will conduct grading, review and inspect established vegetation and reseed any areas deemed deficient, per the document.

Scholl, owner of property at the Rush Creek sites, “has desire … to ensure it is repaired, restored, and environmental liabilities are properly addressed,” according to the filing.

Scholl could not be reached for comment.

The three permits cover 1,079 acres. Their bond amounts total $3,939,240, according to documents filed with the DEP.

The DEP’s decision to reinstate the permits comes with the state’s mine cleanup funds under great financial strain.

A report filed in June by the state Post Audit Division warned that state mine reclamation funds are nearing insolvency and that the DEP has failed to comply with state and federal law in reclamation program oversight, resulting in missed opportunities to financially shore up a program that will need hundreds of millions of dollars to reclaim permit sites under federal regulations.

First Surety Corporation is the surety bond provider for the permits, according to DEP spokesman Terry Fletcher.

A 2019 state Post Audit Division report raised concern about First Surety Corporation’s capacity to pay its surety bond obligations if operators fail to fulfill their obligations to reclaim mines, noting mining and reclamation sureties totaled $47.8 million.

“If the state wants to keep it, then they’re gonna spend their money,” Scholl said during an August visit to the permit sites by the coalition, DEP officials and Keystone representatives.

“The WVDEP strives to find ways to make sure responsible parties take ownership of their sites to lessen the burden on our Special Reclamation Fund, and ultimately, state taxpayers,” DEP Cabinet Secretary Harold Ward said in a statement. “This is the best course of action and we look forward to working with Keystone to ensure that the Rush Creek area is reclaimed properly and in a timely manner.”

Ward said the DEP’s inspection and enforcement staff will be heavily involved throughout reclamation efforts in the Rush Creek area, adding that it will be the sole focus of the operation.

“With the uptick in mining activity, we hope that others in the coal industry will take Keystone’s lead and devote more resources to reclamation efforts,” Ward said.

Cordell is glad that the DEP clarified in writing that no additional mineral removal is to be allowed on the reinstated permits.

But Kanawha Forest Coalition members don’t trust the new reclamation agreement between the DEP and Keystone, citing in part a lack of agency documentation of environmental issues near Kanawha State Forest in inspection reports.

After an April 2017 Rush Creek mine complex site visit, coalition members documented discovering an outlet at the Rush Creek No. 1 Mine no longer existed after a ditch washed out for a few hundred feet. Using aerial imagery from September 2015, the coalition showed the same section of ditch had been washed out for at least a year and a half.

A Gazette-Mail review of DEP inspection reports for the mine before the April 2017 site visit revealed no agency documentation of the outlet washout.

Before he retired from the DEP in 2011, Kanawha Forest Coalition member and former water resources regulator Doug Wood concluded in a letter to the agency the previous year that an existing, permitted Keystone coal quarry discharge into Kanawha Fork was the sole source of the stream’s degraded water chemistry — six years before the waterway was added to the state’s list of impaired streams.

“Many of the causes of those damages have not been corrected by the agency even today,” Wood said in an email Tuesday, decrying “perpetual” acid mine drainage from scattered leachate discharges.

Coalition members fear high outstanding reclamation costs will push Scholl toward seeking to resume coal operations. They wanted the DEP to manage reclamation, contending it would be easier to hold the agency legally accountable and that it had a clearer obligation to reclaim the site.

Barney Frazier of Charleston has been fighting against Scholl mine operations since 2004, when Keystone Industries first proposed steep-slope mining between Rush Creek and its right fork in the shadow of Kanawha State Forest some 3,000 feet south of his Mount Alpha Road home.

“Same coal company, same owner, same long long history of environmental violations, same state regulatory agency, and same plans to clean it all up!” Frazier said in an email.

Frazier doesn’t expect a different result.

“Pardon my skepticism,” Frazier said.

Mike Tony covers energy and the environment. He can be reached at 304-348-1236 or mtony@hdmediallc.com. Follow @Mike__Tony on Twitter.

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