By Willie Dodson, Appalachian Voices

On Dec. 10, 2024, the U.S. Office of Surface Mining Reclamation and Enforcement sent a damning letter to the West Virginia Department of Environmental Protection over the state’s failure to rein in operations on a wildly non-compliant coal strip mine in Wyoming County, West Virginia. 

The letter explained how Bluestone Coal Corporation’s Poca #11/ Contour #2 Surface Mine has repeatedly failed to control drainage and sediment, reclaim disturbed areas, obtain an engineer’s certification of a massive valley fill and renew the mine’s surface mining and Clean Water Act permits. Bluestone is owned and operated by the family of Jim Justice, the current governor of West Virginia and soon-to-be U.S. senator. 

OSMRE’s letter gave West Virginia just 10 days to get its act together before federal regulators conduct their own inspection of the mine and potentially take over environmental enforcement. On Dec. 20, Appalachian Voices contacted the Charleston Field Office of the OSMRE to ask about DEP’s response to the notice, and OSMRE’s next steps on the matter, but we did not receive a response before publication of this blog. 

This federal intervention highlights deep systemic failures in state-level oversight of these operations. Under the 1977 Surface Mining Control and Reclamation Act, most states have been delegated primary authority to permit and regulate coal mining within their borders, but this must be done in compliance with federal regulations. 

In this case, OSMRE is following SMCRA’s Ten Day Notice procedure to exercise oversight and compel necessary enforcement. The Ten Day Notice rule itself is currently under attack by Republican state attorneys general. Appalachian Voices and other conservation groups, with legal representation provided by the Kentucky Resources Council, are currently engaged in litigation to defend this important citizen and federal oversight process. 

The Poca #11/ Contour #2 Surface Mine (referred to here as simply, the Poca Mine) drains directly into Pinnacle Creek, which is protected habitat for the Guyandotte River crayfish, a critically endangered species that is highly vulnerable to heavy concentrations of sediment and other pollutants. Some of the sediment-related violations against the Poca Mine date back to May and June of this year. One violation, issued in June of 2024, was for depositing fill material in a creek without first obtaining a valley fill permit from the US Army Corps of Engineers. The Army Corps sent Bluestone a cease and desist letter for this unpermitted valley fill as far back as 2020. 

The Poca Mine is in close proximity to the Sewell Strip #1 Mine, another Justice family operation that was briefly shut down in December 2022 after a coal truck turned over into Pinnacle Creek, resulting in a major pollution event.

“This species once thrived throughout its historic range, yet it now clings to survival in only two streams on Earth — Clear Fork and Pinnacle Creek in the Upper Guyandotte River watershed,” said Andrew Young, extractive industries committee chair of the West Virginia Highlands Conservancy. “It has already lost 98% of its native habitat to massive-scale surface mining, and this single Jim Justice family coal mine — with unpermitted valley fills and other ongoing egregious violations — could push the Guyandotte River crayfish to extinction. Instead of protecting these natural wonders, the short-term profits of the greedy Justice family have been prioritized, jeopardizing not only this species but our shared environmental heritage.”

In its letter, OSMRE identified 15 distinct violations that have still not been corrected well after the deadlines to do so had passed. OSMRE also called out the WVDEP for failing to identify a pattern of violations on the mine, and for failing to revoke the mining permit, as is required under SMCRA when a permittee fails to comply with a series of escalating enforcement actions. 

On Dec. 16, 2023, Appalachian Voices and the West Virginia Highlands Conservancy sent a letter of protest to the WVDEP, objecting to Bluestone’s then-pending application for renewal of the Poca Mine’s SMCRA permit. The groups argued that the permit renewal could not proceed unless and until the WVDEP published data it had collected regarding sedimentation and the impacts of mining on waterways that are home to the Guyandotte River crayfish. The groups also requested a site inspection and informal conference.

WVDEP granted our informal conference and site inspection request. On Feb. 27, 2024, Young, accompanied by West Virginia Highlands Conservancy board member Tyler Cannon, and Matt Hepler, staff environmental scientist at Appalachian Voices, were given access to inspect the Poca Mine under the watchful eye of WVDEP inspectors. During the inspection, the trio saw firsthand the lack of reclamation and effective runoff and sediment control on the mine.

“I remember being in the Kimball area for work a couple of years ago,” said Cannon. “At that time, I saw a Bluestone owned deep mine discharging mine water directly into Laurel Creek. The creek was black for about two miles. After that experience, what we saw on our visit to the Poca Mine was distressing but not surprising. Offsite erosion was widespread enough that it was visible across what remained of the hollow leading into Little Pinnacle Creek. From one ‘ridge’ to the other was just over a quarter-mile. We should be able to see remaining critical habitats thrive and continue to remain a good home.” 

During the informal conference on March 7, Appalachian Voices and West Virginia Highlands Conservancy staff and members continued to express alarm over sediment entering Pinnacle Creek and harming the Guyandotte River crayfish due to Bluestone’s negligent operations on the Poca mine. 

WVDEP had already notified the Justice-owned company on Dec. 20, 2023, that the company would be required to address the concerns raised by Appalachian Voices and the West Virginia Highlands Conservancy in their initial letter of protest before the renewal application could be approved. To date, Bluestone has not contacted either organization. As a consequence of this and other failures on the part of Bluestone, the company has still not obtained a renewal of its Poca #11/ Contour # 2 SMCRA permit more than a year after the previous permit lapsed. 

In effect, this placed the mine in reclamation-only status. As the permit had expired, Bluestone was no longer allowed to extract coal from the area, but was still required to perform reclamation, maintain water pollution controls and abate previously issued violations.

The OSMRE’s Ten Day Notice letter makes it clear that Bluestone did none of those things and even went so far as to continue mining coal without a valid permit to do so. Meanwhile, the WVDEP failed to meet its own obligations to enforce multiple orders that mining cease at Poca #11/ Contour #2, and failed to follow through on permit revocation, as required by law under these circumstances.

“A coal company owned by West Virginia Gov. and Sen.-elect Jim Justice’s family flagrantly violated numerous environmental regulations for months on end, and the DEP — an agency whose boss is Gov. Jim Justice — did nothing about it,” said Young. “Are we surprised? The environmental abuses on this mine are a travesty, as is the obfuscation of responsibility by the DEP. WVDEP does not appear either willing or capable of living up to their obligations under SMCRA, the Endangered Species Act, or the Clean Water Act.” 

“Our goal is the reclamation of this land and the recovery of Pinnacle Creek,” said Cannon. “Justice’s companies have ravaged so much of this state and the DEP does next to nothing about it. Someone has to hold Bluestone accountable.”

Appalachian Voices and the West Virginia Highlands Conservancy will continue to engage regulators around this mine, and update members and supporters in the coming months.