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Strip mine pollution impaired streams, judge rules

AP file photo

Pollution from a Fola Coal Co. mountaintop removal operation along the Clay-Nicholas County border has impaired aquatic life in two area streams, a federal judge ruled in the latest in a series of such decisions.

U.S. District Judge Robert C. Chambers found that contaminated runoff from Fola’s Monoc #2 Surface Mine had damaged Shanty Branch and Elick Hollow to the point that the streams violate key state and federal water quality protections.

“The chemical and biological components of Shanty Branch and Elick Hollow have been dramatically affected by Fola’s discharges into each stream,” the judge wrote in a 38-page opinion issued on Friday.

Chambers wrote that both streams were “at one time thriving ecosystems, teeming with life that supported important functions for West Virginians and terrestrial and aquatic organisms alike.”

“Downstream users rely on West Virginia’s complex network of flowing streams for clean drinking water, fishing, recreation, and other important economic uses like tourism,” the judge wrote. “These streams also serve cultural and spiritual purposes for West Virginians living near to and downstream from these once pristine rivulets. Protecting these uses is the overriding purpose of West Virginia’s water quality standards and the goal of the state’s permit requirements.”

Chambers made the ruling in a case brought by the Ohio Valley Environmental Coalition, the West Virginia Highlands Conservancy, the West Virginia Rivers Coalition and the Sierra Club. It is the latest in a series of rulings by Chambers in citizen suits on coal-mining water pollution.

Recent cases have focused on electrical conductivity, which scientists use as a key indicator of stream health and the presence of other pollutants, such as chlorides, sulfides and dissolved solids. Research has linked these pollutants increasingly to coal-mining activities, and found that high levels of conductivity are associated with damage to aquatic life.

The litigation before Chambers has also raised questions about efforts by West Virginia regulators and lawmakers to insulate the coal industry from such citizen suits by trying to mandate that only one method of measuring stream health be used under state law, and the judge addressed those issues in Friday’s decision.

“The court will not hamstring itself by limiting its review of the evidence,” the judge responded in Friday’s ruling. “A determination of whether Fola’s discharges impaired a receiving body of water is an issue of fact to be determined on a case-by-case basis upon specific evidence that some biological or physical attribute of the receiving stream has been degraded.”

The judge continued, “Multi-metric tools quantify the point at which impairment under the narrative standard occurs. Policymakers do not set the particular score that divides impaired from unimpaired, as Fola believes; scientists who developed the indices set the threshold. Thus, the value of the threshold score is a matter of scientific inquiry.”

In the case before him, Chambers ruled Friday that the environmental groups had proven that Fola had violated its water pollution permits by discharging into Shanty Branch and Elick Hollow high levels of ionic pollution as measured by conductivity, which have caused or materially contributed to “a significant adverse impact to the chemical and biological components of the streams’ aquatic ecosystem, in violation of the narrative water quality standards incorporated into those permits.”

The judge ruled only on whether those violations had occurred and said he would set a schedule for proceedings to determine what relief the court would order.

Chambers did rule that the environmental groups had not proven that the Fola mine in question had caused or contributed to impairment of Leatherwood Creek by discharging into Shanty Branch and Elick Hollow, both of which flow into Leatherwood Creek.

Chambers noted that “it appears quite likely that Leatherwood Creek is impaired,” but that the citizen groups did not meet the burden of proof that the impairment came from the pollution outlets at issue in the case, and that there are “numerous discharges from other surface mines into Leatherwood Creek upstream from Shanty Branch and Elick Hollow.”

Reach Ken Ward Jr. at kward@wvgazettemail.com, 304-348-1702 or follow @kenwardjr on Twitter.

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