By Andrew Young

Several developments have unfolded since our last update on the ongoing situation concerning the South Fork Cherry River, though not necessarily for the better. South Fork Coal Company continues to illegally transport coal across the Monongahela National Forest (MNF), openly violating the National Environmental Policy Act (NEPA), the Endangered Species Act (ESA), and the Surface Mining Control and Reclamation Act (SMCRA). This ongoing disregard for federal law, combined with inadequate enforcement from government agencies, has left the river and its surrounding ecosystem at continued risk.

Both state and federal agencies tasked with regulating and protecting these lands have, instead, chosen to facilitate the coal industry’s violations. The West Virginia Department of Environmental Protection (DEP), the U.S. Forest Service (USFS), and the U.S. Office of Surface Mining Reclamation and Enforcement (OSMRE) have repeatedly allowed these illegal activities to persist when they could easily step in and shut down the offending operations, including Haulroad #2 (O302211) until the company complies with federal law. While the DEP has long been a notorious ally of the coal industry, it is disheartening that under the current presidential administration, federal agencies would rather litigate and delay for as long as possible rather than act in defense of the environment and endangered species.

This delay tactic, employed to avoid confronting the coal industry’s destructive practices, is emblematic of the deep-rooted issues that plague the enforcement of laws governing coal mining, public lands, and the protection of endangered species. These challenges persist regardless of which political party is in power. In fact, two federal court cases—filed in late 2023 and early 2024—highlight just how slow the wheels of justice can turn when it comes to holding companies like South Fork Coal accountable.

One of these cases is against the Forest Service, with motions for summary judgment due by November 26, 2024, and cross-motions and responses expected by January 27, 2025. The timeline stretches further, with final responses to cross-motions due by February 26, 2025, and replies by March 28, 2025. By the time Chief Judge Volk reviews all the materials and makes a decision on summary judgment, more than a year will have passed since the initial filing, and yet no trial date will be set. This delay means that the coal company will have had ample time to continue breaking the law, further damaging the habitat of the endangered candy darter and other vulnerable species in the MNF.

The Forest Service’s unwillingness to engage in settlement discussions has only exacerbated the issue, granting South Fork Coal a free pass to continue degrading the MNF’s mountains and headwater streams. This behavior is not only unconscionable but also indicative of a broader failure in federal agency leadership. Rather than enforcing NEPA and ESA requirements, they are wasting taxpayer dollars fighting in court, allowing the destruction of public lands to continue unchecked.

Ongoing Violations in the South Fork Cherry River Watershed

Beyond the courtroom, South Fork Coal’s facilities continue to operate with blatant disregard for environmental laws like the Clean Water Act (CWA) and SMCRA. The following sections detail some of the most pressing violations at mines within the South Fork Cherry River watershed.

South Fork Deep Mine No. 2

The South Fork Deep Mine No. 2 has been abandoned and sealed for at least 17 years, but it remains a hub of illegal coal mining activity. South Fork Coal continues to use the permit for “ancillary” operations, including the storage of diesel and blasting equipment, employee parking, and housing for a company office trailer. However, the most pressing issue is the permanent acid mine drainage from the wet seal. This discharge is in continuous violation of West Virginia water quality standards, yet DEP has done nothing to enforce compliance.

The company also constructed illegal discharge pipes to bypass the permitted NPDES outfall, which went unnoticed by regulators until a member of WVHC on a citizen site inspection pointed it out on June 26, 2024. When the issue was raised during an informal conference on the permit renewal, DEP officials admitted that they had never walked the full length of the pipes to sample the water. It is suspected that South Fork Coal removed the pipes after being exposed, but the damage was done and they could not cover up the large hole where water continues to discharge unlawfully off the permit boundary, bypassing the approved NPDES outfall.

This scenario has resulted in ongoing adverse effects on the headwaters of the South Fork Cherry River, a designated critical habitat for the candy darter. Given that the wet seal has been in place for over 17 years, it is unclear how long the illegal discharge has been ongoing, but the environmental impacts are undoubtedly severe.

Rocky Run Surface Mine

The Rocky Run Surface Mine is the most active surface mine in the area, and its record of violations is extensive. Since it began reporting discharges from NPDES outfalls in 2023, it has violated its Clean Water Act effluent limits at least twelve times as of July 2024. Without intervention, these violations will likely continue. The situation is further complicated by South Fork Coal’s consistent history of SMCRA violations.

On August 22, 2024, DEP issued a violation to South Fork Coal for failing to prevent erosion in the permit area. Just five days later, another violation was issued for failing to reclaim the permit area in accordance with regulatory requirements. Shortly after that, a third violation was issued for conducting mining activities outside of bonded and permitted areas. Most recently, on September 25, 2024, DEP cited the company for failing to construct and certify several critical conveyance ditches as required by the approved mining plan. Despite these ongoing violations, DEP has proven incapable of ensuring the company’s compliance, allowing the damage to continue.

Lost Flats Surface Mines

Lost Flats Surface Mines is another site of ongoing environmental violations, with Outfall 032 being a particularly egregious offender. From March 2020 to May 2024, this outfall violated its Clean Water Act permit limits for iron 32 times, which means it is almost constantly discharging non-compliant water. Despite this chronic toxic mine drainage issue in a native brook trout stream, enforcement remains nonexistent.

The site has also been subject to a Failure to Abate Cessation Order (FTACO) due to South Fork Coal’s failure to meet revegetation requirements under federal and state surface mining laws. The FTACO remains in effect to this day, yet DEP continues to treat the violations with minimal urgency and lets SF Coal continue operating elsewhere before completing reclamation on Lost Flats. In July 2024, the company was also cited for failing to meet sediment control and water retention structure certification requirements, yet it remains unclear whether any significant enforcement action will follow during the upcoming “Show Cause” process.

Blue Knob Surface Mine

The Blue Knob Surface Mine is another notorious violator of both the Clean Water Act and SMCRA. The mine has consistently discharged non-compliant water from multiple outfalls into waterways such as Becky Run, the South Fork Cherry River, Middle Branch, Cold Knob Branch, and Laurel Creek, all of which are habitat for native brook trout and include candy darter critical habitat. From 2019 through July 2024, SF Coal violated its Clean Water Act permit limits 31 times and failed to submit the required whole effluent toxicity testing on 25 separate occasions.

These violations have contributed to the permanent stream degradation in documented native trout habitats. Becky Run, in particular, is both a documented trout stream and listed as impaired for iron (trout) on West Virginia’s 303(d) List of impaired waters. The continued pollution of these waterways represents a significant threat to the region’s aquatic life and overall ecosystem health.

Laurel Creek Contour Mine

The Laurel Creek Contour Mine faces severe enforcement action due to its egregious and ongoing violations of SMCRA. The mine has accumulated nearly six figures in civil penalties, which South Fork Coal has yet to pay. As a result, the permit is in the “show cause” process, meaning that no new permits can be issued to the company until the fines are paid. However, given DEP’s lack of strong enforcement, it is unlikely that the company will face any meaningful consequences.

Conclusion

The South Fork Cherry River and its surrounding watershed are facing a serious environmental crisis due to South Fork Coal Company’s persistent violations of federal and state environmental laws. With both state and federal regulatory agencies failing to enforce the laws designed to protect these lands and waters, the damage continues unabated. The systemic failure to hold South Fork Coal accountable for its actions underscores a broader problem in the regulation of coal mining in the region and the permanent acid mine drainage issues present in the coal seams here.

As these violations continue, the critical habitats of endangered species, such as the candy darter, and valuable public lands like the Monongahela National Forest remain under threat. Urgent and decisive action is required to halt these illegal activities, enforce compliance with environmental laws, and ensure that the coal industry does not continue to operate with impunity. Without stronger enforcement, the destruction of these ecosystems will continue, with lasting consequences for the region’s biodiversity and environmental health.