We Object To Renewed Mountaintop Removal

Nov 29, 2022

And you can, too, regarding the Twilight MTR surface mine permit, S502396, 2,455 acres of former lush Appalachian forest, now a feeble attempt at reclamation by Lexington Coal Co. This permit is part of the 12-square-mile Twilight complex on Cherry Pond Mountain on the border of Boone and Raleigh Counties, WV. WV Dept. of Environmental Protection cited this permit July 29, 2021 for failure to "reclaim all secions of highwall within 180 days of final mineral removal." As of Oct. 27, 2022, WVDEP had granted 16 extensions, with the most recent "abate by" date of Nov. 29, 2022. In June, July, and August 2022, WVDEP's inspector wrote that Lexington had "ceased reclamation activities." On Oct. 27 he wrote that Lexington had "one piece of equipment that alternates between two adjacent permits..." It's worth noting that Lexington has had 9 violations on this permit since July 2021, and that WVDEP suspended two adjacent permits, the Crescent 2 permit and Twilight III-A permit, on Sept. 12, 2022, and Aug. 15, 2022, respectively. The Twilight III-A permit had just been renewed four months earlier on April Fools' Day, 2022, over our objections. In March and June, we had urged stronger action, such as revoking the permits, based on Lexington's multiple patterns of violation at these permits. The suspension order on Crescent 2 has since been lifted. 

On Nov. 17, we participated in a site visit of this permit in order to collect information pertinent to the conference. The site was largely gravelly "topsoil substitute," with reclamation vegetation consisting of sparse grasses, nonnative autumn olive, and a smattering of small pine trees. Also on the site were broken-down equipment, stacks of old tires, and dilapidated buildings. 

The West Virginia Department of Environmental Protection has determined that a request for an Informal Conference concerning the above referenced permit has been granted. The Informal Conference will be held virtually on Tuesday, December 13, 2022, at 6:00pm.  The link to attend the Informal Conference is https://meet.google.com/yda-ahid-upw

The call-in number if you wish to join by phone is 1-929-238-0689, PIN 362319038#.

WVDEP will accept comments until the end of the conference by email to David.R.Wagner@wv.gov, or you can give comments verbally during the conference.

Should you have any questions or require additional information, please feel free to contact the permit supervisor, David Wagner, at the email above or 304-792-7050. 

In your comments, please be sure to reference permit S502396 operated by Lexington Coal Company. Here are the comments Coal River Mountain Watch submitted:

-Coal River Mountain Watch OPPOSES renewal of Lexington Coal Company's permit number S502396.

-Reasons for objection. CRMW's basic objections are listed below. We will elaborate, and may state other reasons, during the informal conference.

     --The company has repeatedly demonstrated that it has neither the intention nor the capacity to either mine or reclaim their permits in accordance with WV laws and regulations. Other permits operated by Lexington on this complex have a long list of violations and cessation orders for a variety of violations. 
     Lexington Coal Company has failed to meet the requirements of WV Code 22-3-19 (a) (1) because:
(A) The terms and conditions of the existing permit are not being satisfactorily met. *NOV 88 is still open, extended on multiple occasions, since first issued on Jan. 4.
(B) The present surface mining operation is not in compliance with the applicable environmental protection standards. *NOV 86, first issued over a year ago (July 29, 2021) for backfill/grading (failure to reclaim), is still unabated. Follow-up inspections on June 2, June 30, and July 28, 2022, state that "Permittee has ceased reclamation activities. Permittee is to immediately place reclamation equipment in operation and maintain reclamation activities to avoid further enforcement actions." The most recent follow-up, on Aug. 30, 2022, states, "Permittee has ceased reclamation activities for a period exceeding 60 days.
Permittee entered a verbal agreement to alternate equipment back and forth between two permits/violations of same nature but has failed to do so. Permittee is to immediately place reclamation equipment in operation and maintain constant (no bouncing between jobs) reclamation activities to avoid further enforcement actions." This dragging of their feet and thumbing their nose at WVDEP orders should cause Lexington to have this permit REVOKED rather than renewed.
(C) The renewal requested substantially jeopardizes the operator's continuing responsibility on existing permit areas. *In addition to the "bouncing between jobs" of NOV 86 described in (B) above, Lexington cannot (or will not) comply with their responsibilities on adjoining permits. WVDEP on Sept. 12, 2022, issued a Suspension Order for Lexington's adjoining permit S502007. Also on that permit, WVDEP issued NOV 41 on Aug. 16, 2022, and on the follow-up on Aug. 30 stated, "Permittee has ignored the immediate actions required towards abatement and has performed zero work so far." WVDEP issued NOV 42 on that permit on Aug. 25, 2022, for failure to comply with the Consent Order issued July 25, 2022. Both violations are still unabated. Adjacent permit S502408 is also the subject of a Show Cause order issued Aug. 15, 2022, and has five open, extended Notices of Violation. Lexington can clearly not handle the work required for the permits they have. 
      --WVDEP should not grant this permit renewal because doing so will allow Lexington Coal Company to blast on the site, causing hazardous dust to exit the permit boundary and enter the communities in the area. A significant body of peer-reviewed scientific research has documented the health effects in neighboring communities, including cancer, heart disease, and birth defects. WVDEP is unable to stop the hazardous dust from leaving the site, and cannot in good conscience grant renewal of a permit they know endangers WV residents.  
     --Mountaintop removal is the cradle of the climate crisis, destroying carbon-sink forests while extracting carbon that will go into the atmosphere. Yes, it's real, and serious. Even though S502396 is in "reclamation only" status, we know that it could quickly change to "moving coal," as we saw at adjacent permit S502408. And it's clear that Lexington will not reforest this site, and a few trees does not count as a forest. When the world's scientists tell us we must stop further extraction of fossil fuels, it is unconscionable to renew this permit.