A federal judge has ordered a prominent area coal company in contempt of court for not submitting court-ordered cleanup plans for two Mingo County mine sites.
District Judge Robert Chambers found Lexington Coal Company LLC in contempt of his orders in the U.S. District Court for the Southern District of West Virginia to submit plans to address pollution at the mine sites.
Environmental groups had asked Chambers to hold Lexington Coal in contempt after the company didn’t file a plan by April 16 with enforceable interim milestones that address the discharge of selenium — a pollutant with toxic effects for West Virginia’s aquatic life — and ionic pollutants.
Lexington Coal submitted no plan at all.
“It is clear to this Court that Defendant has shirked its responsibility to satisfactorily comply with this Court’s Orders,” Chambers wrote in his order entered last week.
Chambers wrote it was “inexplicable” why Lexington Coal didn’t file a motion requesting an extension if it needed more time to develop a plan that was supposed to supplement a previous plan Chambers had ruled inadequate.
In March, Chambers had required the follow-up plan that was due April 16 to supplement an initial remediation plan in January that the court ruled had not addressed deficiencies raised by the environmental groups — the West Virginia Highlands Conservancy, Appalachian Voices and the Sierra Club.
In his order filed last week, Chambers required Lexington Coal to submit a “sufficient” cleanup plan within 10 days complying with Chambers’ initial order in December that the company file a plan.
Chambers’ latest order says that Lexington Coal must submit a plan to comply with the federal Clean Water Act and Surface Mining Control and Reclamation Act within 30 days, selenium limits within a year of submitting the plan, and state ionic pollution standards as soon as possible, with enforceable interim milestones no longer than one year apart.
Chambers renewed his requirements that the plan be certified by a professional engineer who provides an affidavit judging that compliance for selenium limits will be achieved within one year, and that ionic pollution restrictions will be met as soon as possible.
The plan must include a chart illustrating a project schedule defining the steps of the compliance process, a timeline for completing each step and a date for final compliance, per Chambers’ orders. Lexington Coal must also submit monthly reports to the court and the environmental groups describing the process and the plan.
If Lexington Coal doesn’t comply with the latest order within 10 days, the company will be assessed a per diem fine of $1,000, Chambers ruled.
Aaron Isherwood, managing attorney for the Sierra Club, said the organization was “certainly very pleased” with the ruling.
“[H]opefully, this ruling will focus Lexington Coal Company on curing its ongoing illegal pollution and set an example to encourage the industry to prioritize protecting water resources,” Isherwood said.
Lexington Coal Company could not be reached for comment.
The company said in a court filing earlier this month that it had been working with its consultants and the West Virginia Department of Environmental Protection, to develop “what basically amounts to a new plan” for cleaning up the sites in the Tug Fork River watershed.
Lexington said it believed it will be able to submit a supplemental plan by June 15, and indicated it would comply with any interim steps the court decides are appropriate.
The environmental groups scoffed at Lexington’s update in a subsequent filing.
“The ‘plan,’ to the extent Lexington has one at all, is to do as little as possible and repeatedly ask for more time,” the groups contended.
Chambers awarded attorneys’ fees and expenses totaling $107,226 to the environmental groups earlier this month, noting they had prevailed so far in the case and that the requests were reasonable.
The lawsuit dates back to August 2019, when the groups alleged Lexington was discharging pollutants illegally at its Low Gap Surface Mine No. 2 and No. 10 Mine.
The court has found Lexington liable for violating the conditions of its permit limiting discharges of selenium.
Selenium accumulation in larval aquatic insects and fish from mine-impacted streams has long eaten away at the biodiversity of central Appalachian waters.
Selenium is an essential mineral that is critical to human health in small amounts. But at high concentrations, it can cause nausea, hair and nail loss, skin rashes, fatigue and nervous system abnormalities.
There’s only a “modest difference” between selenium consumption levels thought to promote human health and those linked to acute or chronic effects, according to a 2020 International Joint Commission report.
Toxic human exposure might 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, the report observed.
West Virginia is home to the highest industrial selenium pollution levels in the country.
A Gazette-Mail review of U.S. Environmental Protection Agency data found in November 2021 that 41 of the 50 industrial point sources with effluent limit exceedances that discharged the most selenium that year were in West Virginia.
One of the highest selenium-discharging industrial point sources was the No. 10 Mine.
In his December order, Chambers noted expert reports from the environmental groups showed the streams below Lexington Coal’s mines are still biologically impaired, and that the degradation is “causally related” to the company’s discharges of ionic pollutants. The judge cited conductivity and sulfate reports from spring 2021 in his order showing high pollutant levels.
The plan that was filed on Lexington Coal’s behalf was submitted by Danville-based Range Environmental Resources.
The plan called for using naturally occurring groundwater containing increased iron concentration to induce a reaction between iron and selenium. The reaction yields iron oxide selenium complexes, which result in a reduction of selenium and a complex that renders the selenium “somewhat biologically inert,” according to the filing.
The plan called for the two sites to use pumps that inject iron-containing source water, like groundwater from a well, into a mixing zone where the source water would be mixed with water from the discharge source to facilitate water treatment.
But Sierra Club senior attorney Peter Morgan previously questioned the plan’s soundness in a phone interview, saying it was oversimplistic and that reducing selenium would take more than pumping up groundwater high in iron. Morgan also said the submitted remediation plan did not sufficiently address the high conductivity and sulfate levels identified by Chambers in his December order.
Selenium is especially costly to treat in industrial wastewater.
Treating selenium in industrial wastewater can be challenging for engineers and plant operators because of low concentrations and discharge limits, and the element’s complex chemical nature, according to a 2018 study published in Journal of Water Supply: Research and Technology-Aqua.
As more coal operators near bankruptcy with their industry in decline, the high costs of selenium cleanup could fall onto taxpayers.
A June state audit report warned that West Virginia Department of Environmental Protection mine cleanup funds are nearing insolvency.