Ohio Valley Environmental Coalition, Inc. v. Fola Coal Co.
82 F. Supp. 3d 673
S.D.W. Va2015Background
- Plaintiffs (citizen groups) sued Fola Coal Company under the CWA and SMCRA, alleging discharges of ionic pollution (measured as conductivity and sulfates) from surface mining into Stillhouse Branch caused biological and chemical impairment.
- The court held a bench trial on liability (Aug 19–22, 2014) and considered agency findings, peer‑reviewed science, and expert testimony post‑trial.
- WVDEP and EPA technical frameworks: West Virginia NPDES permits incorporate narrative water quality standards; WVSCI < 68 indicates biological impairment per prior district-court ruling (Elk Run).
- EPA issued a multi‑author, peer‑reviewed Benchmark (field‑based conductivity benchmark ~300 µS/cm) finding conductivity from alkaline mine drainage causes extirpation of sensitive macroinvertebrates; multiple independent peer‑reviewed studies corroborate thresholds and causal linkage.
- At Stillhouse Branch, pre‑mining conductivity was low (47–104 µS/cm); post‑mining monitoring shows very high conductivity (hundreds to several thousands µS/cm) and severely depressed WVSCI scores (e.g., 31.6, 47 previously), with sampling tying elevated salts to Fola’s mining discharges.
- Court credited Plaintiffs’ experts (Drs. Palmer and King), rejected Defendant’s expert (Ms. Kuehn) as insufficiently qualified to displace EPA consensus, and found by a preponderance that Fola’s discharges caused or materially contributed to impairment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Fola violated permit conditions by discharging ionic pollution that causes or materially contributes to impairment | Ionic pollution (high conductivity/sulfates) from Fola’s mining caused or materially contributed to biological and chemical impairment at Stillhouse Branch | WVDEP issued permits without numeric conductivity limits; permit shield and reliance on WVDEP’s permitting choices absolve Fola | Court held Fola violated permit conditions: discharges caused or materially contributed to impairment; permit shield not available where discharges violate narrative standards |
| Whether narrative water quality violations may be determined using WVSCI and related benchmarks | WVSCI and EPA Benchmark (and corroborating literature) valid measures to determine biological impairment from conductivity | Argued WVSCI alone insufficient and in‑stream standard is not an enforceable effluent limit | Court followed Elk Run: WVSCI methodology and EPA Benchmark are appropriate tools to determine narrative standard violations |
| Weight to afford EPA’s Benchmark and peer‑reviewed literature | Benchmark and literature establish general causation (mining → conductivity → extirpation) and valid thresholds (~300 µS/cm) | Defendant attacked Benchmark methodology and relied on litigation expert Kuehn to discredit it | Court deferred to EPA and the scientific consensus; rejected Kuehn’s critiques as under‑qualified and unpersuasive |
| Required showing for specific causation / "material contribution" standard | Need only show it is more probable than not that ionic pollution is among contributors materially contributing to impairment (need not rule out all other stressors) | Claimed Plaintiffs must rule out other stressors and show conductivity is the principal cause | Court held plaintiffs need not exhaustively rule out alternatives; preponderance that ionic pollution materially contributes is sufficient |
Key Cases Cited
- Ohio Valley Envtl. Coal. v. Elk Run Coal Co., Inc., 24 F.3d 532 (S.D.W.Va.) (district court decision adopting WVSCI for narrative standard analysis)
- Nat’l Mining Ass’n v. McCarthy, 758 F.3d 243 (D.C. Cir. 2014) (EPA guidance was not final agency action subject to pre‑enforcement review)
- Crutchfield v. Cnty. of Hanover, 325 F.3d 211 (4th Cir. 2003) (courts defer to agency scientific determinations in complex environmental matters)
- Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87 (U.S. 1983) (deference to agency expertise on technical scientific predictions)
- Reynolds Metals Co. v. U.S. E.P.A., 760 F.2d 549 (4th Cir. 1985) (agency data selection and statistical methods entitled to great deference)
- Benedi v. McNeil‑P.P.C., Inc., 66 F.3d 1378 (4th Cir. 1995) (epidemiological studies not always required to prove causation where methodology is sound)
- United States v. W.R. Grace, 504 F.3d 745 (9th Cir. 2007) (associational studies can inform expert causation opinions)