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In key ruling, judge finds Alpha mining ‘conductivity’ pollution damaged water quality

By Ken Ward Jr., Staff writer

Citing what he said was “extensive scientific evidence,” a federal judge has ruled for the first time that conductivity pollution from mountaintop removal mining operations is damaging streams in Southern West Virginia.

U.S. District Judge Robert C. Chambers concluded that mines operated by Alpha Natural Resources in Boone and Nicholas counties have “caused or materially contributed to a significant adverse impact” to nearby streams, giving citizen groups a major victory that also supports Obama administration efforts to reduce mountaintop removal impacts.

In a 67-page ruling issued Wednesday, Chambers found that mining discharges had not only altered the chemistry of the streams, but also “unquestionably biologically impaired” them, leaving both the diversity and abundance of aquatic life “profoundly reduced.”

“Losing diversity in aquatic life, as sensitive species are extirpated and only pollution-tolerant species survive, is akin to the canary in a coal mine,” the judge wrote.

“As key ingredients to West Virginia‘s once abundant clean water, the upper reaches of West Virginia‘s complex network of flowing streams provide critical attributes ― functions,‖in ecological science — that support the downstream water quality relied upon by West Virginians for drinking water, fishing and recreation, and important economic uses,” Chambers wrote. “Protecting these uses is the overriding purpose of West Virginia’s water quality standards and the goal of the state’s permit requirements.”

The judge ruled in a case brought in U.S. District Court in Huntington by the Ohio Valley Environmental Coalition, the West Virginia Highlands Conservancy and the Sierra Club. The groups were represented by lawyers from the Sierra Club, Public Justice, and Appalachian Mountain Advocates.

Environmental groups had sued over pollution in two streams, Laurel Creek and Robinson Fork. They alleged violations by Alpha subsidiary Elk Run Coal’s East of Stollings Surface Mine and White Castle No. 1 Surface Mine had damaged Laurel Creek in Boone County, and that violations by Alpha subsidiary Alex Energy’s Robinson North Surface Mine and the Wildcat Surface Mine had damaged Robinson Fork in Nicholas County.

Cindy Rank, mining chairwoman for the Highlands Conservancy, said that the ruling “makes it clear that the integrity of our streams must be protected form the real danger of being destroyed by the millions of tiny cuts made by activities like coal mining operations.”

“Pollution such as the high conductivity discharges addressed in this litigation represents the steady degradation of streams that is stealing the future from generations to come,” Rank said. “Passage of the Clean Water Act over 40 yeas ago was a wise and prescient recognition that waters of the U.S. can support a healthy human population and economy only when those waters are healthy themselves.”

Chambers ruled after a two-day trial in December. He found that the coal operations had caused water quality violations, but has not yet decided what sort of penalty or other injunctive relief he will order.

Ted Pile, a spokesman for Alpha Natural Resources, said that the judge’s decision “flies in the face of determinations by all three branches of West Virginia government,” citing state Department of Environmental Protection policies, a resolution from the state Legislature and a May 30 state Supreme Court decision.

Decisions and policies by those state agencies all “point to the fact that conductivity by itself has not been proven to cause loss of sensitive mayflies, and that further evidence is needed beyond a set of bad bug scores to prove violation of state water quality standards,” Pile said.

Pile said last week’s 3-2 state Supreme Court decision, in a case involving a Patriot Mining permit in Monongalia County, “spells it out clearly, ruling that there is not adequate agreement in the scientific community that conductivity causes harm to aquatic life.

“We fully intend to appeal this ruling and expect to see it reversed,” Pile said in an e-mail message.

The ruling comes as a federal appeals court continues to consider a case over a U.S. Environmental Protection Agency effort to crack down on conductivity pollution from mountaintop removal. A district court judge had thrown out new EPA guidance on the issue, and the agency appealed. Oral argument was heard in February. Citizen groups have encouraged the EPA to taken an even more active role, by writing specific water quality regulations on conductivity.

Scientists used electrical conductivity as a key indicator of stream health and the presence of other important pollutants such as chlorides, sulfides and dissolved solids. Recent research has found increased conductivity downstream from mining operations in Appalachia, and scientists have linked impaired aquatic life to those increased conductivity levels.

In his ruling, Chambers said that he was not basing his ruling on the EPA’s formal permit guidance, but on scientific findings that supported that guidance and to testimony presented at trial by experts who described the importance of those scientific findings. The judge cited numerous scientific articles published in peer-reviewed journals that backed the finding that conductivity pollution damages stream chemistry and harms aquatic life.

Chambers called the scientific evidence connecting conductivity pollution from mining to water quality impairment “overwhelming.”

“This decision further confirms that the science overwhelmingly shows that coal mines in Appalachia are harming streams due to conductivity pollution,” said Aaron Isherwood, managing attorney for the Sierra Club. “The court’s ruling further underscores the need for EPA to engage in rulemaking to protect Appalachian streams from conductivity pollution that is very harmful to aquatic life.”

Reach Ken Ward Jr. at kward@wvgazette.com or 304-348-1702.


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