By Cindy Rank
First a quick reminder about our actions with regard to Bluestone Coal violations at its Red Fox mine in McDowell County. (Bluestone is a subsidiary of the Justice Group, which is controlled by the family of West Virginia Governor Jim Justice.)
On June 4, 2019 West Virginia Highlands Conservancy (WVHC) joined the Ohio Valley Environmental Coalition (OVEC), Sierra Club and Appalachian Voices in sending a Notice of Intent (NOI) to sue if after 60 days Bluestone Coal Company did nothing to address its selenium pollution of tributary streams to Dry Fork of the Tug Fork River.
The July 2019 Voice includes a brief article about this NOI and several other NOIs sent to a variety of coal companies guilty of similar violations in different watersheds.
Then reprinted in the September 2019 Voice was an article from the Charleston Gazette-Mail by Kate Mishkin about the actual complaint that was filed on August 6, 2019 asserting Bluestone was in violation of both its Clean Water Act Permit (NPDES) and its Surface Mine Permit.
Bluestone’s response to Kate’s questions at that time was predictable: “This is a frivolous lawsuit brought by activist organizations who ultimately want to close West Virginia coal mines and put miners out of work.”
Fortunately, the Southern District Court in Bluefield wasn’t so easily swayed and on June 3rd of this year the Judge denied Bluestone’s motion to dismiss and held that our case against the Justice group could proceed. Then in July the court ordered that yes, indeed, the company should be held liable for violations of both the Clean Water Act and Surface Mine Act permits.
Since July our legal team led by Mike Becher of Appalachian Mountain Advocates (APPALMAD) has been working with lawyers for Bluestone, the US Justice Department and West Virginia Department of Environmental Protection who in the interim had taken action against Bluestone for years of violations of the Red Fox permit and administrative requirements.
As long drawn out and often convoluted as some of our litigation can be, including this one, the current case against the Bluestone Red Fox permit is about to wind down. An agreement between all parties has been reached and the final papers should be filed with the court as this issue of the Voice goes to press the first week of December.
First and foremost, Bluestone is to fix the selenium problem, to draw up a compliance plan and enact it within a time certain of 12 months when permit limits for selenium are to be achieved.
Also, as part of this settlement agreement $270,000 will be paid to WV Land Trust for an environmental mitigation project in the Tug Fork River area.
The Mitigation Project is intended to protect and preserve ecologically sensitive wetlands and floodplains along the Tug River. These areas will serve as critical natural buffers, protected from development and mining through either purchase or easement, to improve nutrient and sediment flows, water temperatures, aquatic and terrestrial habitat and improve the quality of life and aesthetics along the Tug River. Included in the plan is development along a Tug River Water Trail that will provide a recreational corridor as well as watershed protection in the Tug River watershed.
Referenced as well in the Consent Decree/Settlement Agreement is the promise of $30,000 civil penalty to be paid to the US Justice Department to settle charges covering the Red Fox mine violations which were part of an earlier, larger Justice Department settlement involving several mines in VA and WV. An amount of $125,000 (the maximum allowed by WV law) is to be paid to WVDEP as required under a WVDEP compliance agreement agreed to in September 2020.
As usual in our settlement agreements, the Court will retain jurisdiction over the terms included in this settlement for the purpose of resolving disputes arising under the Decree, enforcing the terms of the Decree, or entering orders modifying the Decree.