CHARLESTON – A federal judge has ruled that Fola Coal Company violated state and federal water quality protections when it dumped mine waste into valley fills located in tributaries to Leatherwood Creek in Nicholas and Clay Counties.
A bench trial was held March 13 and 14 before District Judge Robert C. Chambers on the liability issues, according to Chambers’ memorandum opinion and order.
The court found that the plaintiffs established that the defendant violated its permits by discharging high levels of ionic pollution, as measured by conductivity, into Shanty Branch and Elick Hollow, which have caused or materially contributed to a significant adverse impact to the chemical and biological components of the applicable streams’ aquatic ecosystems, in violation of the narrative water quality standards that are incorporated into the permits.
The court also found that the plaintiffs did not establish that Fola violated its permit as it relates to ionic pollution flowing into Leatherwood Creek. Both Shanty Branch and Elick Hollow flow into Leatherwood, as do a number of other streams carrying mine drainage.
The ionic pollutants at issue – measured through the electrical conductivity of water samples – are discharged by virtually every mine in Appalachia that utilizes valley fills, are extremely harmful to aquatic life in streams, and also serve as an indicator of other possible pollution problems, according to a Sierra Club press release.
Next, the Court will hold a trial to determine the remedy to this situation.
“This is a major victory for families in West Virginia and the waters that they rely on to be safe and healthy for their children and communities,” said Jim Kotcon, Chapter Chair for the West Virginia Chapter of the Sierra Club. “This is also a reminder to coal companies that they cannot expect to pollute with impunity-- we will continue to fight for our health, waters, lands and wallets. Now, we hope to see the Court hold Fola Coal accountable for cleaning up the mess they’ve made because West Virginia taxpayers will not be left with the bill and the burden of repairing the environmental degradation left behind by coal mining.”
Jim Hecker, the environmental enforcement director at Public Justice said this is the first court decision that uses West Virginia’s newer, more accurate and peer-reviewed method of measuring biological impairment in streams.
“Unfortunately, West Virginia has refused to apply that method to mine pollution, forcing citizens to bring court actions like this one to enforce the law,” Hecker said.
The action was brought against Fola Coal by Sierra Club, Ohio Valley Environmental Coalition, West Virginia Highlands Conservancy, Public Justice and West Virginia Rivers Coalition.
The groups were represented by Hecker; and J. Michael Becher and Joseph M. Lovett of Appalachian Mountain Advocates.
Fola is represented by Jennifer L. Hughes, M. Shane Harvey and Robert G. McLusky of Jackson Kelly.
U.S. District Court for the Southern District of West Virginia case number: 2:15-cv-01371
