Coalition v. Fola Coal Co.

ROBERT C. CHAMBERS, Chief Judge.

Derek O. Teaney, Joseph Mark Lovett, J. Michael Becher, Appalachian Mountain Advocates, Lewisburg, WV, James M. Hecker, Trial Lawyers for Public Justice, Washington, DC, for Plaintiffs.

Jennifer L. Hughes, M. Shane Harvey, Matthew Scott Tyree, Robert G. McLusky, Jackson Kelly, Charleston, WV, for Defendant.

MEMORANDUM OPINION AND ORDER

ROBERT C. CHAMBERS, Chief Judge.

This suit concerns allegations that Defendant Fola Coal Company, LLC, has violated the narrative water quality standards of three separate permits for discharges from three mines into tributaries of Leatherwood Creek. On June 1–4, 2015, the Court held a bench trial regarding

jurisdiction and liability, and the parties timely conducted post-trial briefing.

As explained below, the Court FINDS that Plaintiffs have established, by a preponderance of the evidence, that Defendant has committed at least one violation of its permits governing Fola Mine No. 2 and Fola Mine No. 6 by discharging into Road Fork and Cogar Hollow high levels of ionic pollution, which have caused or materially contributed to a significant adverse impact to the chemical and biological components of the applicable streams' aquatic ecosystem, in violation of the narrative water quality standards that are incorporated into those permits. However, the Court further

FINDS

that Plaintiffs have not met their burden in establishing liability for alleged violations with respect to discharges from Fola Mine No. 4A into Right Fork, under NPDES Permit No. WV1013815.

I. Background

Plaintiffs Ohio Valley Environmental Coalition (“OVEC”), West Virginia Highlands Conservancy, and Sierra Club filed this case pursuant to the citizen suit provisions of the Federal Water Pollution Control Act (“Clean Water Act” or “CWA”), 33 U.S.C. § 1251 et seq., and the Surface Mining Control and Reclamation Act (“SMCRA”), 30 U.S.C. § 1201 et seq. Compl., ECF No. 1. Before proceeding to the parties' evidence and arguments, the Court will first discuss the relevant regulatory framework and the factual background of this case.

A. Regulatory Framework

The primary goal of the CWA is “to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” 33 U.S.C. § 1251(a). To further this goal, the Act prohibits the “discharge of any pollutant by any person” unless a statutory exception applies; the primary exception is the procurement of a National Pollutant Discharge Elimination System (“NPDES”) permit. 33 U.S.C. §§ 1311(a), 1342. Under the NPDES, the U.S. Environmental Protection Agency (“EPA”) or an authorized state agency can issue a permit for the discharge of any pollutant, provided that the discharge complies with the conditions of the CWA. 33 U.S.C. § 1342. A state may receive approval to administer a state-run NPDES program under the authority of 33 U.S.C. § 1342(b). West Virginia received such approval, and its NPDES program is administered through the West Virginia Department of Environmental Protection (“WVDEP”). 47 Fed.Reg. 22363–01 (May 24, 1982). All West Virginia NPDES permits incorporate by reference West Virginia Code of State Rules § 47–30–5.1.f, which states that “discharges covered by a WV/NPDES permit are to be of such quality so as not to cause violation of applicable water quality standards promulgated by West Virginia Code of State Rules § 47–2.” This is an enforceable permit condition. See, e.g., OVEC v.

Elk Run Coal Co., Inc., No. 3:12–cv–0785, 2014 WL 29562, at *3, *6 (S.D.W.Va. Jan. 3, 2014); OVEC v. Elk Run Coal Co., Inc., 24 F.Supp.3d 532 (S.D.W.Va.2014); OVEC v. Fola (Stillhouse), 82 F.Supp.3d 673 (S.D.W.Va.2015).

Coal mines are also subject to regulation under the SMCRA, which prohibits any person from engaging in or carrying out surface coal mining operations without first obtaining a permit from the Office of Surface Mining Reclamation and Enforcement (“OSMRE”) or an authorized state agency. 30 U.S.C. §§ 1211, 1256, 1257. A state may receive approval to administer a state-run surface mining permit program under the authority of 30 U.S.C. § 1253. In 1981, West Virginia received conditional approval of its state-run program, which is administered through the WVDEP pursuant to the West Virginia Surface Coal Mining and Reclamation Act (“WVSCMRA”). W. Va.Code §§ 22–3–1 to –33; 46 Fed.Reg. 5915–01 (Jan. 21, 1981). Regulations passed pursuant to the WVSCMRA require permittees to comply with the terms and conditions of their permits and all applicable performance standards. W. Va.Code R. § 38–2–3.33.c. One of these performance standards requires that mining discharges “shall not violate effluent limitations or cause a violation of applicable water quality standards.” Id. § 38–2–14.5.b. Another performance standard mandates that “[a]dequate facilities shall be installed, operated and maintained using the best technology currently available ... to treat any water discharged from the permit area so that it complies with the requirements of subdivision 14.5.b of this subsection.” Id. § 38–2–14.5.c.

B. Factual Background

This controversy concerns discharges from three surface mines along the southern portion of the Leatherwood Creek watershed: (1) Fola Surface Mine No. 2 in Clay and Nicholas Counties, West Virginia; (2) Fola Surface Mine No. 4A in Clay County, West Virginia; and (3) Fola Surface Mine No. 6 in Nicholas County, West Virginia. Stipulation ¶ 6, ECF No. 53.

Defendant's mining activities at Surface Mine No. 2 are regulated under WV/NDPES Permit WV1013840 and West Virginia Surface Mining Permit S201293, both originally issued in 1994. Id. at ¶¶ 6–7. WVDEP reissued WV/NPDES Permit No. WV1013840 in 2001, 2004, 2008, and 2014. At the time this complaint was filed, the 2008 reissuance was in effect. Outfall 001 of Surface Mine No. 2 discharges into Road Fork and Leatherwood Creek. Id.

Defendant's mining activities at Surface Mine No. 4A are regulated under WV/NPDES Permit WV1013815 and West Virginia Surface Mining Permit S200502. Id. at ¶¶ 21, 23. WV/NPDES Permit WV1013815 was originally issued in 1993, and was reissued in 1999, 2006, 2008, and 2014. At the time this complaint was filed, the 2008 reissuance was in effect. Outfalls 22, 23, and 027 of Surface Mine No. 4A discharge into Right Fork of Leatherwood Creek and Cannal Coal Hollow. Id.

Finally, Defendant's mining activities at Surface Mine No. 6 are regulated under WV/NPDES Permit WV1018001 and West Virginia Surface Mining Permit S2011999, both originally issued in 2000. Id. at ¶¶ 42–44. WVDEP reissued WV/NPDES

Permit WV1018001 in 2008. Id. at ¶ 43. At the time this complaint was filed, the 2008 reissuance was in effect. Outlets 013, 015, and 017 of Surface Mine No. 6 discharge into Cogar Hollow, a small tributary of Leatherwood Creek. Id. at ¶ 43.

In recent years, water quality measurements from the above listed discharges have routinely shown discharges of high conductivity. Stipulation ¶ 14, ECF No. 53 (showing discharges from Outlet 001 at Mine No. 2 with conductivity measurements consistently around 3000 µS/cm); id. at ¶ 32 (showing discharges from Outlets 22, 23, 27 at Mine No. 4A consistently ranging from approximately 1500 µS/cm to above 3000 µS/cm); id. at ¶ 47 (showing discharges from Outlets 013, 015, 017 with conductivity measurements consistently ranging from approximately 2500 µS/cm to 4000 µS/cm). Water quality measurements have also revealed elevated conductivity in Leatherwood Creek and its tributaries. Id. at ¶ 13 (showing conductivity levels ranging from 3000 µS/cm to 4000 µS/cm in Road Fork); id. at ¶ 33 (showing conductivity levels consistently above 1000 µS/cm below Mine No. 4A); id. at ¶ 46 (showing conductivity levels ranging from 3000 µS/cm to 5000 µS/cm in Cogar hollow).

On June 1–4, 2015, the Court conducted a bench trial on liability issues. At the close of the evidence, the Court entered an oral finding on general causation, but reserved judgment on issues of specific causation. Tr. 4 at 259–60, June 4, 2015, ECF No. 107. Since that time, the parties have provided timely post-trial briefing. In Section II, the Court will review the evidence and arguments concerning general causation and elaborate on its general causation finding. In Section III, the Court will move on to review the evidence and arguments concerning specific causation for each of the three mine permits at issue.

II. General Causation

Generally speaking, Plaintiffs are faced with the dual burden of establishing both general and specific causation. At the close of trial, the Court announced its finding that Plaintiffs met their burden with respect to general causation. Tr. 4 at 259–60, ECF No. 107. Specifically, Plaintiffs proved by a preponderance of the evidence that conductivity, as a measure of a consistent mix of ions typical of alkaline mine drainage in the Appalachian region, may cause or materially contribute to biological impairment to aquatic life as measured by the West Virginia Stream Condition Index (“WVSCI”), thereby constituting a violation of the narrative water quality standards incorporated into Defendant's permits. Id.; accord OVEC v. Elk Run Coal Co., 24 F.Supp.3d 532 (S.D.W.Va.2014); OVEC v. Fola Coal Co.

(Stillhouse), 82 F.Supp.3d 673 (S.D.W.Va.2015) The bases for the Court's finding on general causation are explained in further detail below, with the majority of discussion focused on Defendant's critiques of EPA's Benchmark, followed by a brief review of other scholarly publications on the question.

A. Introducing the EPA's Benchmark

Yet again, the Court begins its analysis of general causation with arguments concerning the import and reliability of the EPA's Benchmark. See Elk Run, 24 F.Supp.3d at 558–59; Fola (Stillhouse), 82 F.Supp.3d 673. In March 2011, the EPA released “A Field–Based Aquatic Life Benchmark for Conductivity in Central Appalachian Streams” (“EPA's Benchmark” or “Benchmark”). Joint Ex. 17. The EPA's Benchmark is the studied result of qualified authors and reviewers. Id. at ix-xiii (listing authors, contributors, and reviewers, including Defendant's expert, Dr. Charles Menzie).

In the nearly three hundred page Benchmark, the EPA reached the conclusion that “salts, as measured by conductivity, are a common cause of impairment of aquatic macroinvertebrates” in central Appalachian streams only after considering and then ruling out the potential confounding effects of habitat, organic enrichment, nutrients, deposited sediments, pH, selenium, temperature, lack of headwaters, catchment areas, settling ponds, dissolved oxygen, and metals. EPA's Benchmark at A–1, B–1; see also id. at A–40 (“This causal assessment presents clear evidence that the deleterious effects to benthic invertebrates are caused by, not just associated with, the ionic strength [, i.e., conductivity,] of the water.... When [other potential] causes are absent or removed, a relationship between conductivity and ephemeropteran [, i.e. mayfly,] richness is still evident.” (emphasis added)); id. at A–37 (“As conductivity increases, the occurrence and capture probability decreases for many genera in West Virginia ... at the conductivity levels predicted to cause effects. The loss of these genera is a severe and clear effect.”). The Benchmark also found that “of the [nine] land uses ... analyzed, only mining especially associated with valley fills[, i.e., mountaintop mining with valley fills,] is a substantial source of the salts that are measured as conductivity.” Id. at A–18.

The EPA ultimately concluded that the “chronic aquatic life benchmark value for conductivity” in West Virginia streams is 300 µS/cm. Id. at xv. To derive this recommended high-end threshold value, the EPA used the 5th percentile of a species sensitivity distribution, based on the standard methodology for deriving water-quality criteria, meaning that this 300 µS/cm benchmark value for conductivity is “expected to avoid the local extirpation [due to the salts measured as conductivity] of 95% of native species.” Id. at xiv.

In support of both the specific 300 µS/cm benchmark value and the general causal linkage between conductivity and impairment to aquatic macroinvertebrates, the Benchmark contains a graph which charts, for 163 genera, the level of ionic exposure above which a genus is effectively absent from water bodies in a region, with conductivity readings on the x axis and proportion of genera extirpated on the y axis. Id. at xiv, 18 fig. 8. A fairly consistent line is formed as conductivity and extirpation both increase, illustrating the causal connection between conductivity and significant biological impairment which Plaintiffs seek to prove. See id. at 18 fig. 8. Relatedly, the EPA reported its finding that “the probability of impairment at 500 µS/cm is 0.72 and at 300 µS/cm, is 0.59.” Tr. 2 at 111, June 2, 2015, ECF No. 100;

Joint Ex. 17 at A–36. Stated differently, when conductivity reaches 300 µS/cm, it is more likely than not that the streams will suffer impairment. Moreover, the likelihood of impairment continues to increase as conductivity further exceeds that threshold. Joint Ex. 17 at A–36; Tr. 2 at 110–12, ECF No. 100.

Upon reviewing the EPA's findings, the Scientific Advisory Board (“SAB”) made the follow comments:

Mountaintop mining and valley fills are important sources of stress to aquatic systems in the Central Appalachian region, both from the perspective of localized and cumulative regional impacts. In a companion report, the Panel provides a review of EPA's assessment of the impacts associated with mountaintop mining and valley fills. There is clear evidence that valley fills are associated with increased levels of dissolved ions (measured as conductivity) in downstream waters, and that these increased levels of conductivity are associated with changes in the composition of stream biological communities.

Pls.' Ex. 128 at PE1418, Tr. 2 at 112–13, ECF No. 100. The SAB further concluded that the EPA had presented a “convincing case” for establishing the causal relationship between conductivity and loss of genera. Pls.' Ex. 128 at PE1431, Tr. 2 at 115, ECF No. 100.

Plaintiffs rely on EPA's Benchmark here as they have elsewhere: as a scientific study which, among others, supports Plaintiffs' general causation theory that high conductivity levels in streams impacted by alkaline mine drainage causes or contributes to biological impairment. Defendant's many critiques of the EPA Benchmark will be considered below. Before doing so, however, it is necessary to briefly revisit general principles regarding the degree of deference owed EPA's Benchmark in the analysis to follow.

“Particularly with environmental statutes such as the Clean Water Act, the regulatory framework ... requires sophisticated evaluation of complicated data.... [A court] therefore do[es] not sit as a scientific body in such cases, meticulously reviewing all data under a laboratory microscope.” Crutchfield v. Cnty. of Hanover, Virginia, 325 F.3d 211, 218 (4th Cir.2003) (citation omitted) (internal quotation marks omitted). Instead, “[a] reviewing court must generally be at its most deferential when reviewing factual determinations within an agency's area of special expertise.... It is not the role of a reviewing court to second-guess the scientific judgments of the EPA.” Sw. Pennsylvania Growth Alliance v. Browner, 121 F.3d 106, 117 (3d Cir.1997) (citation omitted) (internal quotation marks omitted); see also Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 103, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983) (“[A] reviewing court must remember that the [agency] is making predictions, within its area of special expertise, at the frontiers of science. When examining this kind of scientific determination, as opposed to simple findings of fact, a reviewing court must generally be at its most deferential.”); Envtl. Def. Ctr., Inc. v. U.S. E.P.A., 344 F.3d 832, 869 (9th Cir.2003) (“We treat EPA's decision with great deference because we are reviewing the agency's technical analysis and judgments, based on an evaluation of complex scientific data within the agency's technical expertise.”); Chem. Mfrs. Ass'n v. U.S. E.P.A., 919 F.2d 158, 167 (D.C.Cir.1990) (“[W]e give considerable latitude to the EPA in drawing conclusions from scientific and technological research, even where it is imperfect or preliminary.” (internal quotation marks omitted)).

“[T]echnological and scientific issues ... are by their very nature difficult

to resolve by traditional principles of judicial decisionmaking. For this reason, we must look at the decision not as the chemist, biologist or statistician that we are qualified neither by training nor experience to be, but as a reviewing court exercising our narrowly defined duty of holding agencies to certain minimal standards of rationality.” Reynolds Metals Co. v. U.S. E.P.A., 760 F.2d 549, 558–59 (4th Cir.1985) (internal quotation marks omitted). “[A]n agency's data selection and choice of statistical methods are entitled to great deference, ... and its conclusions with respect to data and analysis need only fall within a zone of reasonableness.” Id. at 559 (citations omitted) (internal quotation marks omitted). In the context of agency action, “if the agency fully and ably explains its course of inquiry, its analysis, and its reasoning sufficiently enough for us to discern a rational connection between its decision-making process and its ultimate decision, [a court] will let its decision stand.” Crutchfield, 325 F.3d at 218 (brackets omitted) (internal quotation marks omitted).

In light of these precedents, and as previously analyzed by this Court, EPA's Benchmark must be afforded deference. See Elk Run, 24 F.Supp.3d at 558–59, Fola (Stillhouse), 82 F.Supp.3d at 679–82. The EPA's Benchmark methodically defines its inquiry, explains its reasonable analysis, and thoroughly supports its ultimate, rational conclusions. Additionally, the Benchmark underwent extensive scientific review, and it is respected as good—or even excellent—science within the relevant scientific community. Dr. Palmer, Tr. 2 at 96, ECF No. 100.

B. Critiques of the EPA Benchmark

Turning to consider newly presented evidence and argument, two recurring questions underlie the Court's instant analysis of general causation as related to EPA's Benchmark: (1) whether specific expertise in epidemiology is required for the development or review of EPA's Benchmark; and, in a similar vein, (2) whether specific expertise in ecology is required for the development or review of EPA's Benchmark. We are faced with these fundamental

questions because of the apparent (and unsurprising) difficulty in finding an expert in both epidemiology and ecology. Instead, the Court heard testimony of expert epidemiologists with no formal ecological training and expert ecologists with no formal epidemiological training. From this mix of incomplete expertise, we are left with the task of sorting competing expert opinions.