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Lexington Coal Company Responds to Contempt-of-Court Ruling With Mingo County Mine Cleanup Assurances



June 8, 2022 - A coal company responsible for some of the highest discharges of a pollutant toxic to West Virginia aquatic life has filed what it says is a mine cleanup plan as ordered by a federal court.

Lexington Coal Company LLC’s filing Tuesday came after it was found in contempt of federal court on May 18 for not submitting plans to address pollution at two Mingo County mine sites.

Lexington Coal Company had failed to meet an April 16 deadline set in the U.S. District Court for the Southern District of West Virginia for filing a plan with enforceable interim milestones that address the discharge of selenium — a pollutant with toxic effects for West Virginia’s aquatic life — and ionic pollutants.

District Judge Robert Chambers ordered Lexington Coal to submit a plan to comply with the federal Clean Water Act and Surface Mining Control and Reclamation Act within 30 days. Chambers also ordered the Kentucky-based company to comply with 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.

In Lexington Coal’s Tuesday filing, company vice president of engineering Kermit Fincham pledged the company would comply with selenium limits within a year through the installation of biochemical reactor systems.

Fincham promised Lexington Coal would comply with state ionic pollution standards as soon as possible through his professional judgment and using unnamed third-party environmental consultants.

Fincham indicated seven outlets were in compliance with modified state permit limits and that the company would use a biochemical reactor system to address two other outlets not in compliance.

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 environmental groups.

Those groups — the West Virginia Highlands Conservancy, Appalachian Voices and the Sierra Club — prompted the contempt-of-court order against Lexington Coal by asking Chambers to hold the company in contempt after it didn’t file a plan by April 16.

Lexington Coal’s latest filing hasn’t satisfied the Sierra Club.

“Lexington still doesn’t appear to take court-ordered compliance seriously,” Eastern Regional Sierra Club manager Bill Price said in a statement.

Price contended the plan falls short of what Chambers required.

Price said the Sierra Club was especially concerned that Lexington Coal did not appear to have identified any technology or strategy for addressing ionic pollution in its latest filing.

The court has found Lexington liable for violating the conditions of its permit limiting discharges of selenium.

The environmental groups sued Lexington Coal in August 2019 in the West Virginia Southern District, alleging the company was discharging pollutants illegally at its Low Gap Surface Mine No. 2 and No. 10 Mine.

The groups said high mining intensity in the Ben Creek and upper Pigeon Creek areas and related discharges from outlets at both mine sites likely caused or contributed to biological impairment in those creeks and their downstream tributaries.

Chambers awarded attorneys’ fees and expenses totaling $107,226 to the environmental groups last month, noting they had prevailed so far in the case and that their requests were reasonable.

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.

An HD Media 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.