A Federal Court Rules that Increased Conductivity Impairs a Stream — How Shocking!

On Tuesday, Chief Judge Robert Chambers ruled that Fola Coal Company violated the Clean Water Act by discharging mine waste with sufficiently high levels of conductivity to cause or materially contribute to impairment of Stillhouse Branch.  The decision appears designed to be bullet-proof to any appeal.  Judge Chambers thoroughly explained why the opinion of the defendant’s expert should not be given “great weight,” why the plaintiffs’ experts were reliable, and why EPA’s “Field-Based Aquatic Life Benchmark for Conductivity in Central Appalachian Streams” is entitled to substantial Chevron deference.

In short, Judge Chambers found on a number of independent grounds that plaintiffs more than met their burden do demonstrate impairment caused or materially contributed to by Fola Coal’s operations.  I just don’t see an appellate court reversing those findings.  For those interested in the actual nitty-gritty of putting together an expert case, the Court’s discussion of the both sides’ experts is well worth reading.

It’s interesting to compare this decision with the 6th Circuit permit shield decision also issued on Tuesday.  It is possible that the 6th Circuit decision could have important consequences, if it causes EPA to take a second look at what some delegated states are doing with their general permit programs.  Otherwise, the Fola Coal case is likely to have the more lasting impact.  If mine owners cannot address conductivity issues, more decisions such as this are likely, and that would be a serious problem for surface mine operations.

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