Coal Company’s Discharges Unlawful According To W.Va. Federal Court
After a four-day bench trial, the U.S. District Court for the Southern District of West Virginia concluded that a coal company had committed at least one violation of its permits by discharging high levels of ionic pollution (as measured by conductivity) into an area stream and the discharges caused or materially contributed to a significant adverse impact to the chemical and biological components of the applicable stream’s aquatic ecosystem. The suit had been brought under the citizen suit provisions of the Clean Water Act and the Surface Mining Control and Reclamation Act. The court relied on a 2014 ruling by the same court in Ohio Valley Environmental Coalition v. Elk Run Coal Co. in applying that a West Virginia Stream Condition Index (WVSCI) score below the EPA-approved impairment threshold of 68 indicates a violation of West Virginia’s biological narrative water quality standards.
In issuing its ruling, the court again rejected the defendant coal company’s Clean Water Act permit shield defense and that violations of the narrative water quality standard cannot be determined based solely on WVSCI scores. The court also rejected the coal company’s criticisms of the March 2011 EPA benchmark study entitled “A Field-Based Aquatic Life Benchmark for Conductivity in Central Appalachian Streams.” The court, as it had previously ruled, owed deference to the EPA benchmark study, which determined that 1) mountaintop mining with valley fills is a substantial, if not the primary, source of conductivity in adjacent streams and 2) high conductivity in streams causes significant biological impairment to aquatic macro-invertebrates.
In perhaps the court’s most important conclusion, it ruled that the plaintiffs did not have to exhaustively rule out alternative causes given that the applicable legal standard is met whether ionic pollution causes “or materially contributes” to chemical or biological impairment. The court explained that the need to rule out other causes only arises if the applicable standard requires one thing to actually “cause” another. To quote the court, “Defendant argues that ‘because Plaintiffs do not know how the impact of other stressors in [the stream], they cannot show that conductivity is a principle cause of impairment, or even a ‘material contribution’ to impairment. For all the inapposite case law on causation offered, Defendant has not offered a single case or other shred of legal authority justifying such an interpretation of ‘material contribution.'”
Phase two of the litigation will resolve the appropriate injunctive relief and civil penalties according to the court’s liability opinion.
