Environmental groups want a federal court to step in to stop what they say is unpermitted pollution on surface coal mine sites around the perimeter of the Kanawha State Forest.
The groups allege that a Florida-based company with an ownership track record of environmental violations and effects in the Rush Creek area is degrading creek water by allowing the unpermitted discharge of pollutants at two mine sites near the forest.
Keystone West Virginia LLC has failed to secure required permits for mine discharge sites and comply with discharge monitoring and reporting requirements, contends the lawsuit filed by the Kanawha Forest Coalition, the West Virginia Highlands Conservancy, Appalachian Voices and the Sierra Club.
The groups have asked the U.S. District Court for the Southern District of West Virginia to find that Keystone West Virginia is violating federal water pollution and surface mining control laws.
The groups also have asked the court to order the company to apply for state permit coverage for discharges from two area surface mines, Rush Creek Surface Mine No. 2 and KD Surface Mine No. 1, and comply with its water pollution control permit for a third mine nearby, Rush Creek Surface Mine.
West Virginia Department of Environmental Protection records show that the former two mines have no water pollution control permits.
The lawsuit alleges that excessive amounts of pollutants from Keystone West Virginia’s mines are degrading the water of Davis, Rush and Lens creeks and their tributaries.
Pollution on the mine sites has been prevalent for years, compromising water quality.
Rush Creek and its right fork and nearby Kanawha Fork were added to the state’s list of impaired streams in 2016.
“This degradation has been unceasing and severe, resulting in horrible conditions that cannot support healthy communities of aquatic organisms in the receiving streams and portions of the streams that those tributaries flow into,” Kanawha Forest Coalition member Doug Wood said in an email.
The DEP has issued more than 150 mining permit violation notices for the three mine sites cited in the lawsuit since 2009, according to agency records, many of them for effluent exceedances and sediment control failures.
The DEP reinstated and transferred the permits to Keystone West Virginia and Jacksonville, Florida-based owner Tom Scholl in October 2021. The permits were revoked from previous permittee Revelation Energy in October 2020, 15 months after the company and its affiliate Blackjewel LLC filed for Chapter 11 bankruptcy protection.
But the permits had been under Scholl’s control before.
Scholl’s Keystone Industries LLC held the permits before transferring them to Revelation Energy in 2013. The permits drew over 50 violation notices from the DEP under Keystone and Scholl prior to that transfer.
But members of the Kanawha Forest Coalition have criticized the DEP for what they say has been lax oversight of the mine sites.
The lawsuit cites “systemic failures” in the agency’s enforcement and permitting of surface mining.
Wood, a former water resources regulator who retired from the DEP in 2011, condemned the DEP’s Division of Mining and Reclamation, saying it fails to issue water pollution control permits when necessary. The result, Wood said, has been leaking drainage ditches and pits and acid water production from exposed acid-bearing rocks.
“Our lawsuit, if successful and if successfully followed up by Keystone West Virginia, will not only improve the aquatic life conditions of the ailing streams, but perhaps also highlight the appropriate engineering standards the [DEP] should be using in its permitting process,” Wood said.
The coalition is a volunteer organization formed in 2014 to stop mountaintop removal mining on the Kanawha State Forest perimeter.
The DEP has issued violation notices and cessation orders for the Rush Creek mines stemming directly from citizen complaints filed by coalition members and residents reporting noncompliant water pollution outlet discharges and damages to Rush Creek Road.
But the agency has declined to issue violation notices in response to complaints reporting noncompliant discharges and noise disturbance.
DEP spokesman Terry Fletcher declined comment, noting that the agency is not a party to the lawsuit filed last month.
Scholl did not respond to a request for comment.
“[W]e hope the court will finally compel Scholl and his company to properly permit, monitor, and maintain the discharges from his mine permits, and ultimately to do whatever is necessary to abate the serious and widespread water pollution issues he’s caused,” Kanawha Forest Coalition member Chad Cordell said in an email.
Keystone West Virginia has not filed a response to the lawsuit.
“Converting living streams into industrial sewers is a legacy the coal industry and its compliant partner, the [DEP’s] Division of Mining and Reclamation ... continues to hand us West Virginians who must live with the consequences or move away to other states that do not treat their citizens so badly,” Wood said.