The Lexington Coal Co. has fallen into deeper legal and regulatory trouble as authorities say the company is ignoring past orders to clean up after itself.
A federal judge castigated the company in an order last week that found the company had failed to address inconsistent compliance with standards for a pollutant that has toxic impacts on West Virginia aquatic life.
U.S. District Judge Robert Chambers ruled that Lexington must keep paying an accrued fine that he levied in July after finding that the company has been unwilling to comply with court mandates to show how it will address pollution at two Mingo County mine sites.
The order is the latest conclusion that Lexington has been environmentally irresponsible in the case brought by environmental groups against the company in 2019.
The U.S. District Court for the Southern District of West Virginia has found the company, whose West Virginia operations are based in Milton, liable for violating the conditions of its permit limiting discharges of selenium. Selenium accumulation in larval aquatic insects and fish from mine-affected streams has long eaten away at the biodiversity of central Appalachian waters.
Chambers ruled last week that a status report filed by Lexington on Aug. 15 spanning just over a page did little to assure the court it was adequately addressing selenium and ionic pollution noncompliance at both mine sites in the Tug Fork River watershed.
An attorney for Lexington said in the Aug. 15 filing that the company would activate biochemical reactor systems to address selenium issues under permits for the Surface Mine No. 10 and Ben Creek Slurry Impoundment and was “working with additional experts in water quality compliance to look at additional measures” to bring the sites into compliance with ionic pollution standards.
But Chambers noted that Lexington’s report gives no timeline for achieving selenium compliance or court-ordered “specific and enforceable milestones” for addressing ionic pollution.
Chambers ordered Lexington in July to pay a $1,000-per-day fine retroactive to May 29 for not complying with previous rulings mandating more detailed mine site cleanup efforts.
The judge required Lexington pay the retroactive fine by July 25 and keep paying the accrued fine every two weeks until it submits a “full and complete plan,” with the daily fine rising to $1,500 if Lexington failed to submit such a plan by Aug. 1.
Chambers’ ruling last week noted that the daily fine was still in place.
“If not clear already, the Court is losing patience with Defendant’s inability to satisfy its court-ordered directives,” Chambers wrote in his Aug. 25 order.
Chambers warned that further noncompliance would result in “increasing sanctions” and a show-cause order directing Lexington’s corporate officer to appear.
Lexington has not filed a response to Chambers’ latest order and could not be reached for comment.
A Gazette-Mail review of U.S. Environmental Protection Agency data found in November 2021 that the Surface No. 10 Mine was one of the highest selenium-discharging stationary sources of pollution in the country. Of the 50 industrial point sources with effluent limit exceedances that discharged the most selenium at that time, 41 were in West Virginia.
In a December order, Chambers noted that expert reports from the environmental group plaintiffs 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 plaintiffs are the West Virginia Highlands Conservancy, Appalachian Voices and the Sierra Club.
On the same day as Chambers’ order, the West Virginia Department of Environmental Protection issued Lexington a notice of violation for allegedly failing to comply with a past order by not beginning to remove material placed on a downslope at the Crescent No. 2 Surface Mine in Boone County.
It was the 18th notice of violation that the DEP has issued to Lexington for that permit this year.
The DEP issued an order on Aug. 18 requiring Lexington to “show cause” or explain why the state shouldn’t suspend or revoke the permit, six days after it issued the same order to the company for the Twilight III-A Surface Mine in Boone County.
For the Crescent No. 2 Surface Mine, the DEP cited alleged sediment control failures dating from February to May that the agency said resulted in water exiting a mining area into Matts Creek and allowed coal pit water to exit through a water pollution control outlet as black discolored discharge.
For the Twilight III-A Surface Mine, the DEP cited alleged reclamation and progress reporting failures. The DEP had ordered Lexington to finish backfilling and grading and submit a monthly progress report to an agency inspector until all work is complete.
The DEP told Lexington that failure to respond to the orders could result in suspending or revoking the permits and declared forfeiture of the bonds for the permits.
The DEP approved renewing a mine permit for the Twilight III-A Surface Mine in April, even after it had reported more than 40 violations across four of the company’s permits for active mine sites in the watershed since the start of last year. Just three days before the approval, the DEP had issued letters to Lexington Coal notifying the company that it was delinquent in paying two $22,500 penalties and was prohibited by a state legislative rule from issuing any permit or permit revision to the company as long as the civil penalties remain delinquent.
Vernon Haltom, executive director of Coal River Mountain Watch, a Raleigh County-based anti-mountaintop removal mining nonprofit, has urged the DEP to withdraw Lexington permits on which it has violated agency orders.
“Why does WVDEP think another [order] will be any different?” Haltom said in an email in response to the latest violation at the Crescent No. 2 Surface Mine. “It’s as if LCC is daring WVDEP to revoke their permit. Enough is enough.”
The West Virginia Secretary of State’s Office lists Lexington’s manager as Jeremy Hoops, son of Jeff Hoops, who stepped down as CEO of mining companies Blackjewel and Revelation Energy as part of a 2019 bankruptcy deal.
