In a new ruling that found water pollution violations at two West Virginia permits, a federal judge on Wednesday cited what he described as "myriad lines of evidence" that mountaintop removal coal mining damages water quality and aquatic life in Appalachian streams.
Chief U.S. District Judge Robert C. Chambers ruled for the Ohio Valley Environmental Coalition and other groups in a case brought over conductivity pollution at Fola Coal mining permits in Clay and Nicholas counties.
The judge found that Fola, a CONSOL Energy subsidiary, was liable for damage to streams at two of the three permits that were named in the suit.
In a 60-page ruling, Chambers detailed a long list of peer-reviewed studies that link pollution discharges from large-scale strip-mining operations to damage to aquatic life in downstream waterways, and noted a "complete absence of peer-reviewed scientific articles to the contrary."
"The scientific community repeatedly reaches and reports the same conclusion despite the use of multiple methodologies relying on a variety of datasets and conducted by a range of expert scientists," the judge wrote.
"The link between surface mining and biological impairment of downstream waters has been sufficiently - if not definitively - established in the scientific literature," Chambers wrote. "Through myriad lines of evidence, researchers have reached the same general causation conclusion, without a single peer-reviewed publication reporting contrary findings."
In a footnote, Chambers noted that one of Fola's expert witnesses in the case had prepared a scientific paper that was funded at least in part by Fola, Alpha Natural Resources and the British mining company Rio Tinto, but that the study was "not accepted for publication."
Scientists use electrical conductivity as a key indicator of stream health and the presence of other important 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. Mining industry officials and their political supporters have been highly critical of efforts by the Obama administration's Environmental Protection Agency to focus more attention on conductivity, unsuccessfully challenging in court the agency's guidance for addressing the issue through tougher mining permit reviews.
Chambers ruled in a case in which OVEC, the West Virginia Highlands Conservancy and the Sierra Club alleged water pollution from three Fola sites had damaged streams in the Leatherwood Creek watershed of Clay and Nicholas counties. The suit targeted the Fola Mine No. 2 and Fola Mine No. 6 for their discharges into Road Fork and Cogar Hollow, and Fola Mine No. 4A for discharges into Right Fork.
The judge ruled with the citizen groups on the No. 2 and No. 6 permit, but with Fola concerning the No. 4A permit. Chambers said that in the case of No. 4A, the citizen groups did not provide enough evidence that stream impairment was caused by three Fola pollution outlets that were part of the lawsuit, as opposed to a dozen other mining pollution discharges in the area.
Chambers ruled after a four-day trial in Huntington in early June. He has not yet set a scheduled for the second phase of the case, which will decide what legal relief will be ordered for the company's pollution violations.
Reach Ken Ward Jr. at kward@wvgazette.com, 304-348-1702 or follow @kenwardjr on Twitter.