Court OKs pact between conservationists, mining company to aid Kanawha State Forest

The settlement requires Keystone West Virginia to pay $38,750 to the conservationist groups’ counsel, Lewisburg-based environmental law firm Appalachian Mountain Advocates Inc., to cover attorney fees and other case costs. The agreement also requires Keystone West Virginia to pay a civil penalty of $3,875 to the U.S. Treasury.

Per the settlement, Keystone West Virginia must pay the foundation within 30 days to fund a project intended to improve water quality and habitat in and near Davis Creek and its tributaries within the Kanawha State Forest.

Kanawha State Forest Foundation chairman John Hughes told the Gazette-Mail Monday the settlement sum would be used to support replacing septic systems in the forest, a 9,300-acre attraction within the West Virginia State Parks system.

The foundation is a volunteer nonprofit organization focused on preserving the state forest. The organization isn’t a party in the lawsuit.

The agreement notes that Davis Creek was one of the streams receiving discharge from mines at issue in the lawsuit filed in August 2022.

The settlement agreement approval from the District Court for the Southern District of West Virginia follows the court’s ruling in November 2023 that Keystone West Virginia violated federal water pollution and mine reclamation laws near Kanawha State Forest. The agreement was proposed for court approval in December 2023.

The case’s plaintiffs have been the Kanawha Forest Coalition, West Virginia Highlands Conservancy, Appalachian Voices and the Sierra Club. The Kanawha Forest Coalition is a volunteer organization formed in 2014 to stop mountaintop removal mining on the Kanawha State Forest perimeter.

Chad Cordell of the Kanawha Forest Coalition told the Gazette-Mail the settlement represents a “small step towards addressing some of the widespread damage caused by” Keystone West Virginia and Tom Scholl, who has owned the company.

Keystone West Virginia could not be reached for comment.

The environmental groups alleged that Keystone West Virginia failed to secure required permits for mine discharge sites and comply with discharge monitoring and reporting requirements. The groups said in their lawsuit excessive quantities of pollutants from Keystone West Virginia mine sites were degrading Davis Creek, Rush Creek, Lens Creek and their tributaries.

Conservationist concerns have persisted over Keystone West Virginia pollution oversight on the sites around the perimeter of Kanawha State Forest, west of Rush Creek Road.

KSF Foundation looks to use funds for new septic systems  

The 2023 settlement proposal states that a recent project that included work by the West Virginia Division of Natural Resources with coordination from the Kanawha State Forest Foundation was restoration of 2 miles of Davis Creek to improve stream bank stabilization, decrease sedimentation, and removal of the Davis Creek Dam.

The dam obstructed the natural flow of the stream and caused problematic sediment buildup in the waterway, according to the settlement.

Hughes said that the Kanawha State Forest Foundation has planned to replace aging septic systems within the forest with the settlement money.

“[W]e felt that that would help clean the waters up out there,” Hughes said.

Hughes said the foundation would have to get updated septic system replacement cost estimates after having tabled replacement plans during the wait for the court to approve the settlement agreement. Hughes projected that the $34,875 slated to come to the foundation would be enough to fund replacement of three septic systems.

“It’s always good for us to make improvements to the park,” Hughes said.

Conservationists alleged unpermitted, unreported pollution

The plaintiffs alleged that Keystone West Virginia discharged pollutants from unpermitted point sources at the Rush Creek Surface Mine No. 2 and KD Surface Mine No. 1 and failed to report pollutant discharges and monitoring results as required by its permit for a third mine, the Rush Creek Surface Mine.

West Virginia Department of Environmental Protection records show that the Rush Creek Surface Mine No. 2 and KD Surface Mine No. 1 had no water pollution control permits at the time of the lawsuit.

The court ruled Keystone violated the Clean Water Act and Surface Mining Control and Reclamation Act between November 2021 and April 2023 by discharging pollutants from Rush Creek Surface Mine No. 2 without a valid permit.

The court found that from November 2021 through November 2022, Keystone violated the Clean Water Act and Surface Mining Control and Reclamation Act by not satisfying reporting requirements of the company’s water pollution control permit for the Rush Creek Surface Mine.

The Rush Creek surface mine permits and the permit for KD Surface Mine No. 1 allow reclamation only.

The DEP reinstated and transferred all three mining permits for the sites to Keystone West Virginia and Scholl in October 2021.

The permits were revoked from previous permittee Revelation Energy in October 2020, 15 months after the company and its affiliate, Blackjewel LLC, filed for Chapter 11 bankruptcy protection.

But the permits had been under Scholl’s control before.

Scholl’s Keystone Industries LLC held the mining permits before transferring them to Revelation Energy in 2013. The permits drew over 50 violation notices from the DEP under Keystone and Scholl prior to that transfer.

Kanawha Forest Coalition members had voiced concerns about the 2021 mining permit reinstatements, citing the sites’ history of environmental violations under Scholl and fearing high outstanding reclamation costs would push Scholl toward seeking to resume coal operations.

DEP downplayed own report implicating Keystone WV 

A DEP report published last month concluded a seep of polluted water negatively affecting water quality in a tributary of Lens Creek was caused by Keystone West Virginia mining near Kanawha State Forest. The Kanawha Forest Coalition and Appalachian Voices contended the findings confirmed their allegations about the cause of acid mine drainage near Marmet.

But the DEP downplayed the report containing those findings despite its long history of determining environmental violations on the 160-acre mine permit in question near the state forest.

In a report it completed on Sept. 9, the DEP “reasonably concluded” the seep “is likely attributable” to Keystone activity on KD Surface Mine No. 1. The report found the seep “most likely resulted from” exposure of toxic earth encountered in coal mining and is entering shallow groundwater.

The DEP report indicates the seep “has had negative influence on” measures of pollution in the left fork of an unnamed tributary of Lens Creek, including pH and manganese, both parameters for which the DEP has found the creek to be impaired.

The report found increases in conductivity and sulfates likely attributed to surface mining. Conductivity is a measure of how well water conducts electricity that is elevated by large-scale surface mining and other pollution sources. Sulfates are contaminants the DEP uses to identify sites likely affected by mine drainage.

June and July DEP field visits on which the report was based followed an appeal of the DEP’s March approval of a bond release on the permit filed by Cordell and Willie Dodson, coal impacts program manager at Appalachian Voices. Cordell and Dodson contended the permit didn’t meet requirements for bond release due to untreated, unlawful acid mine drainage.

The DEP may grant permittees a release from statutorily required bond — financial assurance that they will satisfy all requirements of a permit before it is issued — if the agency determines they performed the reclamation covered by the bond. The minimum amount of bond for any mine reclamation bonding is $10,000 under state law.

But DEP Chief Communications Officer Terry Fletcher downplayed the report in response to a Gazette-Mail request for comment, calling it a “preliminary assessment” that “failed to establish a hydrologic connection” between the surface mining and observed seepage.

Fletcher said last month additional sampling, field reconnaissance and review were underway to further investigate — and that the source of the seep and “any potential relationship with the mining operation” still are undetermined.

Segments of Lens Creek are impaired via high levels of fecal coliform, iron, pH, selenium and dissolved aluminum, according to a DEP draft statewide assessment of water quality released in July.

Cordell told the Gazette-Mail last month Keystone’s mining operation is the only plausible cause of acid mine drainage in the area.

Cordell questioned Fletcher’s reference to the Sept. 9 report as a “preliminary assessment,” pointing out DEP officials had framed the agency’s work as more definitive in email correspondence with him.

DEP Division of Mining and Reclamation Assistant Director Nicki Taylor estimated to Cordell in an Aug. 19 email the DEP should “have the investigation completed by the end of next week.” DEP Division of Mining and Reclamation Director Jason Rorrer told Cordell in a July 9 email a DEP geologist who conducted a site visit and collected samples was in a data analysis phase prior to authoring “a final report.”

In response to the settlement agreement approved last week, Cordell lamented that the DEP persists in issuing permits for large-scale surface mining, “knowing full well the long-term damage they cause to our water quality.”

“Until the DEP and our state and federal politicians stop groveling to the coal industry,” Cordell said, “we'll continue to see coal companies like Keystone put their own profits above clean water and public health.”