Another expert excluded from Sierra Club case

HUNTINGTON – Sierra Club science fell short at a trial over water pollution from coal mines, leaving government in control rather than nature groups.

The club and local groups abandoned expert Dennis Lemly in July and did the same with substitute Bryce Payne at trial this month.

Payne's attitude at a deposition reminded Patriot Coal lawyer Robert McLusky of Peter Venkman from the "Ghostbusters" movies.

McLusky quoted Bill Murray's character saying, "Back off, man. I'm a scientist."

McLusky wrote, "Dr. Payne is a soil scientist –- not an aquatic biologist."

U.S. District Judge Chambers excluded Payne on Aug. 12, the fourth day of trial, without opposition from the nature groups.

Chambers told lawyers to settle or report for closing arguments on Aug. 17.

On Aug. 17, he granted a brief stay.

"The parties have represented that they are close to resolving the matter," he wrote.

That doesn't necessarily mean total victory for Patriot, but its owners would not settle on terms giving nature groups greater regulatory power than the government.

The groups have filed a series of suits seeking that power, claiming they must enforce the Clean Water Act because government hasn't enforced it.

They aim to displace the U.S. Environmental Protection Agency as managers of consent decrees EPA reached with Patriot Coal and Massey Energy in 2007.

Most suits allege contamination from selenium, and one at federal court in Charleston accuses Massey mines of aluminum contamination.

Ohio Valley Environmental Coalition, West Virginia Highlands Conservancy and Coal River Mountain Watch join the Sierra Club in the litigation.

Derek Teaney of the Appalachian Center for the Economy and the Environment in Lewisburg, represents the nature groups.

Earlier this summer, Chambers set trial on two cases and combined it with a hearing on injunctive relief in a third case.

The nature groups offered Lemly, of Wake Forest University, as a witness.

They produced a report he wrote for Teaney's center and Sierra Club, featuring color photographs of grotesque fish and colorful preaching.

"If waterborne selenium concentrations are not reduced, reproductive toxicity will spiral out of control and fish populations will collapse," Lemly wrote.

"The warning signs are evident. If a catastrophic event is to be avoided, action must be taken now," he wrote.

In July, Teaney notified Patriot that Lemly would not testify.

McLusky moved to strike Lemly's report, and Chambers granted the motion.

Chambers allowed immediate substitution for Lemly on July 27, and he limited any new expert's testimony to subjects Lemly would have covered.

Teaney brought forth Payne and delivered him to a deposition on Aug. 2.

Payne said he had no education in aquatic biology.

He called himself an environmental scientist.

"When I'm asked to interpret data, it often incorporates multiple fields. I don't get to walk down one track," he said.

"We are the integrators, if you want, and we have to do it. It simply requires it," he said.

"Otherwise you have these pieces of data and no problem is ever addressed from a broader perspective," he said.

Trial opened on Aug. 9, without a jury. In three days the nature groups presented four live witnesses and video of a fifth.

On the third day, McLusky moved to exclude Payne.

He wrote that "his testimony is not deemed to be reliable and trustworthy."

The nature groups didn't oppose the motion, and Chambers granted it the next day.

Patriot rested without a word of defense.

According to minutes, "the parties requested that the court set a hearing to entertain settlement or for closing arguments."

He set a hearing and later postponed it to Aug. 30.

He asked for a telephone conference on Aug. 25.