A federal judge signed off on a settlement Wednesday between a coal company controlled by Gov. Jim Justice’s family and environmental groups under which the company must comply with selenium discharge limits and pay $270,000 to the West Virginia Land Trust.
The approval from Senior U.S. District Judge David Faber in the U.S. District Court for the Southern District of West Virginia comes two months after the Ohio Valley Environmental Coalition, the West Virginia Highlands Conservancy, Appalachian Voices and the Sierra Club filed the agreement with Bluestone Coal Corp., which in turn came four months after Faber found the company liable for selenium pollution discharged into waters near the Red Fox Surface Mine in McDowell County.
The agreement requires Bluestone to provide the Ohio Valley Environmental Coalition, the West Virginia Highlands Conservancy, Appalachian Voices and the Sierra Club with quarterly progress reports monitoring pollutant discharge permit compliance. Bluestone also is required to pay a $30,000 civil penalty to the U.S. Treasury and pay $270,000 to the West Virginia Land Trust, a statewide conservationist nonprofit, to help fund development of a new water trail along the Tug River.
The company also must comply with selenium effluent limits at an outlet that has been out of compliance within 12 months of the agreement’s approval.
The agreement stemmed from a lawsuit the environmental groups filed in August 2019 under the citizen lawsuit provisions of the Clean Water Act and Surface Mining Control and Reclamation Act.
Faber found Bluestone liable for 60 violations of its monthly average limit for selenium and 78 violations of its daily maximum limit for selenium in a July 2020 ruling.
High selenium concentrations can be toxic to animals and humans.
The agreement indicates that Bluestone already has paid $414,500 for selenium effluent violations from June 2018 through June 2020. In September 2020, Bluestone and the West Virginia Department of Environmental Protection signed an administrative consent order requiring the company to pay $125,000 for permit violations, including selenium effluent exceedance.
But the DEP actually had calculated a total base penalty of $1,307,900 for Bluestone before listing the final penalty total of $125,000, citing that as the maximum for any civil administrative penalty per state code.
The West Virginia Land Trust has not yet identified a specific parcel of land for the proposed trail, according to the consent decree. But the nonprofit will direct project funding to acquire, through purchase or easement, land to preserve to improve water quality in the Tug River watershed.
Faber had rejected a request from Bluestone to dismiss the lawsuit. The company unsuccessfully argued that a 2016 agreement that Southern Coal Corp. reached with the U.S. Environmental Protection Agency precluded environmental groups from filing the lawsuit over selenium pollution. Southern Coal also is owned by the Justice family.
That 2016 agreement required Southern Coal to take about $5 million in pollution control measures after more than 23,000 violations between 2009 and 2014 in West Virginia, Virginia, Kentucky, Tennessee and Alabama. But the mines targeted by the consent decree have violated effluent limits for selenium, aluminum and other effluents several hundred times since then, according to company records.
The West Virginia Secretary of State’s Office website lists Justice’s son, James C. Justice III, as director and president of Bluestone Coal Corp., and the younger Justice signed the consent decree on the company’s behalf. Gov. Justice took over the company upon the death of his father in 1993 and bought the company back in 2015, after having sold it to Mechel, a Russian mining and steel company, in 2009.