By Cindy Rank

We have an update from our legal team about recent developments in the Clean Water Act (CWA) and Surface Mining Control and Reclamation Act (SMCRA) enforcement action against Lexington Coal at two of its mines in Mingo County.

Since filing the original complaint in August 2019 (that’s right, 2019) we have had several favorable findings by the Court. Nonetheless, despite a couple contempt findings, and ongoing efforts to encourage the company to adhere to the court ordered requirements to adequately address pollution emanating from the mine sites, even appointing a Special Master to oversee the company’s efforts, Lexington continues to drag its feet. 

In July, the Court directed the Special Master to provide a report on Lexington’s compliance status with its selenium treatment obligations and its ionic toxicity obligations.

The Special Master reported that Lexington had missed multiple deadlines and was not in compliance with the Court’s orders.

We were ordered to file a response to the Special Master’s report simultaneously with Lexington.

We responded that additional contempt sanctions to the tune of $2 million were warranted. We reserved the right to request that the Court order Lexington to hire competent engineering consultants if their response warranted it. We also argued to the Court that, if Lexington asserted impossibility as a defense because of its finances, that the Court order it to forfeit its bonds so that DEP could take over.

Lexington responded that it had made good faith efforts to comply and was in substantial compliance. It did not assert inability to comply as a defense.

On September 25, 2024, we had an oral argument in court about sanctions for Lexington’s ongoing contempt. The Special Master made a presentation by video conference, in which he noted the ongoing failure to meet deadlines and lack of competent process engineering.

We responded that the Court should require Lexington to hire a competent engineering firm (with pre-clearance by the Court), but that monetary sanctions were also warranted in order to motivate Lexington and to ensure other defendants take court orders seriously.

Lexington presented a lot of excuses and insisted that they were working hard.

The judge then previewed his ruling from the bench. He told Lexington he was not satisfied with their progress. On selenium, where they are farther along, he announced he is inclined to find them in substantial compliance but will order them to hire a process engineer to get them across the finish line.

On ionic toxicity, he expressed tremendous dissatisfaction and frustration with Lexington’s efforts. He directed them to provide a scientific justification for their belief that habitat improvement will result in narrative water quality standards compliance, directed them to obtain competent engineering assistance, and announced he is likely to impose a contempt sanction greater than his last sanction of $50,000, but less than the $2 million we asked for.

An official court order will be forthcoming in the next couple of weeks. We will report on any significant variations or elaborations that may be highlighted in that order.