Barney Frazier was flipping through the newspaper last month when he was jarred by a blast from the past.
He’d been hoping the blasts would stay there.
“Oh, goodness, it’s just here we go again,” Frazier said. “Here we are again.”
Frazier, 72, of Charleston had come across a legal ad announcing that a Milton-based coal mining company that filed for bankruptcy in 2019 had applied to the West Virginia Department of Environmental Protection to reinstate three mining permits to another coal company.
The new permittee would be the same coal company that first proposed 17 years ago steep-slope mining between Rush Creek and its right fork in the shadow of Kanawha State Forest behind his home.
“It dredges up everything that I’ve been dealing with since 2004,” Frazier said, sitting at a table near the front door of the red-brick Mount Alpha Road home into which he and his wife, Jackie, moved that year.
The Fraziers learned four months after moving in that Keystone Industries, LLC, a Florida-based coal company, planned to bore into coal seams and conduct blasting operations some 3,000 feet south of their new house.
So Frazier rallied his neighbors — some of whom lived closer to the proposed mine than he did — and lawmakers against the permit application. They got the Kanawha County Commission to oppose the application and then-U.S. Rep. Shelley Moore Capito, R-W.Va., and then-state Delegate Charles R. “Rusty” Webb, R-Kanawha, to write letters to the DEP expressing concern about the proposed mine site.
But the agency issued the permit for the Rush Creek No. 2 Mine to Keystone Industries in 2006, setting the stage for years of environmental violations and impacts on and around the Fraziers’ home.
Blasting rattled their windows once or twice a week. Light from night mining grew brighter as operations moved nearer.
“It’s just aggravating as can be,” said Frazier, a retired attorney who worked as an underground coal miner for five years and was born and raised in Logan County.
In 2013, Keystone transferred the permit and two others for surface mines in the Rush Creek area to Revelation Energy, LLC, the Milton-based company and nation’s sixth-largest coal producer that operated the mines until the permits were revoked in October 2020 — 15 months after the company and its affiliate Blackjewel LLC filed for Chapter 11 bankruptcy protection.
The other two mines for which Keystone transferred permits to Revelation were the nearby Rush Creek No. 1 and Keystone Development No. 1 — after the DEP issued 40 violation notices to Keystone and owner Tom Scholl for sediment control and revegetation failures and exceeding water pollution limits.
Now Revelation is looking to reinstate and transfer the permits back to Keystone after both left the land scarred and the water impaired around the perimeter of Kanawha State Forest.
“I was just totally shocked,” Frazier says. “I didn’t see it coming.”
So on a rainy August weekday afternoon, Frazier and three members of the volunteer Kanawha Forest Coalition consider what’s driving them to fight the same coal company again. The group submitted monitoring data that led to a 2016 DEP order for Keystone permanently ending mining at the Keystone Development No. 2 mine permit.
Seated to Frazier’s right, Chad Cordell remembered drinking from clear springs and eating wild blueberries from the hills around Rush Creek as a kid before leaving the state in 1997. When he came back in 2009, the hills had been blasted to rubble.
“There’s got to be citizen eyes on the ground, and that takes a lot of time and a lot of energy,” Cordell says. “It’s daunting to get back into this.”
The coalition has unsuccessfully urged the DEP to reject the companies’ applications to renew their permits — including Keystone’s still active Keystone Development No. 2 permit — and filed reports with the agency.
The failures have been many.
In a February 2014 water impact assessment intended to determine whether Keystone Development and the Rush Creek No. 2 mines were designed to prevent damage outside their permit areas, DEP geologist Forrest Jones concluded both were “expected to be environmentally successful” and contended he was “unaware of any outstanding environmental problems” in the area.
Jones cited a “general windshield tour” to assert the “existing mines have performed environmentally well,” that “amply designed sediment control structures” would be “more than adequate” to protect against damaging amounts of sediment entering tributaries of Davis Creek. Proposed mining was designed to “consistently comply” with water quality standards.
“He was wrong on every single count,” Cordell said.
State environmental regulators had already issued 16 violation notices for the Rush Creek No. 2 permit for sediment control failures, toxic mine drainage and exceeding air blast limits. Fifteen notices came while Keystone was still the permittee before its 2013 permit transfer to Revelation.
Fifty-four more notices have followed at the Rush Creek No. 2 for similar offenses and 72 at KD No. 2, including 15 for sediment control failures.
Permits for those mines and the neighboring Rush Creek No. 1 and KD No. 1 mines have been assessed a combined 177 notices by the DEP since the former was first issued in 2001 totaling $188,697 in fines for Keystone and Revelation.
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 says.
The DEP has two cases pending against Revelation and one against Keystone in Kanawha County Circuit Court for collection of past penalties incurred under state water pollution law.
“The agency issues mining permits based on faulty assumptions,” Cordell said. “Then they routinely fail to document the resulting environmental damage.”
Kanawha Forest Coalition members have regularly cited a lack of agency documentation of environmental issues near Kanawha State Forest in violation notices and inspection reports.
Coalition members are most concerned with two possibilities given what Cordell views as Keystone owner Tom Scholl’s record of “noncompliance and shoddy work and taking shortcuts.”
One is state environmental regulators reinstating Revelation’s revoked permits for reclamation to Keystone Industries. To the coalition, the even worse possibility is the department allowing coal mining to resume on the permits.
The three permits under consideration for reinstatement are for the Rush Creek No. 1 and No. 2 and Keystone Development No. 1 mines.
Neither Scholl nor Revelation officials responded to requests for comment.
Asked whether the DEP would factor Keystone’s history of environmental violations into its reinstatement decision, acting spokesman Terry Fletcher said the agency will evaluate “in accordance with all applicable regulations and statutes.”
From Revelation to reclamation
Surety bonds secured to cover reclamation costs for the three permit sites up for reinstatement total more than $3.9 million, Fletcher said Tuesday.
In a letter dated a day earlier, the federal Office of Surface Mining Reclamation and Enforcement told DEP Secretary Harold Ward the state has failed to take sufficient steps to ensure complete and accurate estimations of all outstanding reclamation obligations on active permits. The office required the state to submit within 60 days an amendment to its reclamation program.
The federal office two decades ago approved a DEP program amendment — the creation of a reclamation fund advisory council and an increased special reclamation tax — after threatening a partial takeover of the state’s reclamation program over liability estimation concerns.
A report filed in June by the state Post Audit Division warned that state mine cleanup funds are nearing insolvency and 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.
Liabilities for permits issued before July 2019 will total nearly $500 million over the next 20 years, according to an actuary for the Special Reclamation Fund Advisory Council. The balance of special reclamation funds as of March 1 was about $190 million, less than 40% of the projected 20-year liability.
“So once Revelation went bankrupt, though, then DEP is faced with the question, how’s this ever going to get reclaimed?” said Kanawha Forest Coalition member Jim Waggy, of Kanawha City.
“If the state wants to keep it, then they’re gonna spend their money,” Scholl said during a Wednesday visit to the permit sites by the coalition, DEP officials and Keystone representatives.
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.
Fletcher declined to estimate reclamation costs for the three sites up for reinstatement, saying costs “remain subject to a large degree of uncertainty and refinement.”
Fletcher said Keystone has performed onsite reclamation work where it now seeks to be reinstated as permittee since Revelation filed for bankruptcy in 2019.
But the DEP has documented leaking sediment ditches and landslides at Rush Creek Mine No. 1 since then, and Cordell said minimal water treatment since 2019 has done little to reclaim the area.
Revelation had signed consent orders in 2017 agreeing to total land reclamation efforts on the three permits by June 30, 2018. Tree planting was to be completed within two growing seasons, but the DEP issued violation notices to Revelation in 2019 for failing to follow approved planting and revegetation plans on all three permits.
Three years later, coalition members said, they fear high outstanding reclamation costs will push Scholl toward seeking to resume coal operations.
“What is his incentive to take on potentially millions of dollars in reclamation water treatment liabilities?” Cordell said. “We don’t know what his goals are. One of the concerns that we have is he may want to mine more coal off this complex, and this is a complex that has a track record from the very beginning of noncompliance, of water pollution, of absolute environmental destruction.”
“I want to clean it up,” Scholl said during Wednesday’s site visit.
A DEP official told Cordell during the visit that Keystone must apply separately for mining approval if the permits are reinstated.
If Scholl did apply again, the odds would be in his favor.
The DEP has denied just 1.57% of mining permit applications it has received since the start of 2016, according to Fletcher. The agency has approved 7,035 mining permit applications during that span, Fletcher said.
Feeling frustration, not protection
Following a June 2016 flood that caused widespread devastation throughout the Kanawha Valley, an unstable berm on the Rush Creek No. 2 Mine permit gave out, took down a swath of trees and deposited mud that blocked Rush Creek Road.
“When it collapsed on this road here, people couldn’t get out for a while,” recalled Doug Wood, a coalition member and former water resources regulator who retired from the DEP in 2011.
After an April 2017 Rush Creek mine complex site visit, the coalition wrote a letter to the DEP observing a significant crack in the berm.
Another failure resulted in another debris and silt dump onto Rush Creek Road in July 2018, according to a citizen complaint filed with the DEP.
In the same letter, 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.
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.
“[It’s] absurd that residents of the state have to do the job of the regulatory agencies for them,” Cordell says. “That’s really where we’re at.”
While still a DEP employee, Wood concluded in a June 2010 letter to the agency 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.
Three years later, Wood wrote to the DEP on behalf of the volunteer Kanawha State Forest Foundation, observing Keystone and Revelation mining operations had caused severe damage to Kanawha Fork’s ecosystem, wiping out mayfly and stonefly populations. Wood called on the agency to penalize the area’s mine operators for water quality standard violations.
“It’s particularly frustrating for me because I know what the DMR [Division of Mining and Reclamation] inspectors and the staff up above them should be doing,” Wood said.
Wood contended the DEP’s Division of Mining and Reclamation underemphasizes tracking sources of pollution, starting downstream and working upstream. Wood accused the division of having a “culture of off-site damage ignorance” for decades.
Cordell called the DEP a “captured agency” hemmed in from the top by industry-friendly political considerations — starting with West Virginia’s coal magnate governor and prolific environmental law violator, Jim Justice. Wood agreed.
“It is a telling thing that all this mess we’re describing to you here occurs basically a five-to-10-minute drive away from DEP headquarters,” Waggy saod.
Not home anymore
Daile Rois’s 85-year-old father-in-law decided to move three hours away to escape the mess.
“He shocked us when he did that,” said Rois, 60, who now takes care of her father-in-law with her disabled veteran wife in Dayton, Ohio. “He left his church. He left his friends.”
Rois’s father-in-law, Fred Thomas, had lived on Middlelick Branch, a byway curling off Range Road next to Kanawha Fork, since 1963.
It was a place he still embraced as home after his wife died, and Rois and her wife left Dayton to move in with him in December 2012 to take care of him upon his request.
But the three of them moved back to Dayton in 2018 from their Middlelick Branch abode 2,000 feet away from the Keystone Development No. 2 Mine.
After the DEP approved the mine’s permit in 2014, the family harbored constant concern over their water quality, decreased property value and increased flooding.
Rois said she couldn’t trust the DEP, which she said she had to push hard to conduct water quality testing and check for violations.
“Everything gets put on the citizenry to prove, to document, to advocate,” Rois said. “Most people won’t do it. Most people are either afraid of the coal company or know that it winds up being nearly a full-time job.”
Rois credited the Kanawha Forest and the Ohio Valley Environmental coalitions for giving her the information she needed to be an environmental advocate for her family, prompting her to volunteer with conservationist groups. She tried to reassure her father-in-law, but she gleaned a lesson from her only six years living in West Virginia that still distresses her.
“That was probably the most heartbreaking thing for me, was discovering there was no one that stood for the citizens,” Rois remembered.
Bracing for a familiar future
Back in Barney Frazier’s home, Kanawha Forest Coalition members said they are out of appealing options for the three permits up for reinstatement – either the DEP manages onsite reclamation or Keystone takes over.
“At least with the DEP, they have a clear obligation to reclaim the site and not to do more damage by attempting to mine it more, and we can hold them accountable if they fail to meet those obligations,” Cordell said. “We can bring lawsuits against the DEP to compel them to treat the water, to complete the reclamation.”
Frazier said he wants more to show for the legwork he began 17 years ago.
With Frazier’s eyebrows lowered in concentration at his table as he jots down notes, the adjectives he used when recalling his reaction to last month’s fateful legal ad, shocked, dumbfounded, overwhelmed — no longer apply.
But they crept back when Frazier acknowledged his fear that more water quality violations than reclamation will occur if the DEP approves any reinstatement for Keystone.
“I don’t want to have to deal with this again,” he sighed.