Court Finds Fola Coal Violating Clean Water Act

Court Finds Fola Coal Violating Clean Water Act
Mine Owner Liable for Conductivity Pollution at Two Mines in West Virginia

Charleston, WV – Today, the United States District Court for the Southern District of West Virginia found that conductivity pollution from two mountaintop removal coal mines owned by Fola Coal, a subsidiary of Consol Energy, violated key state and federal water quality protections.  The mines, Fola Surface Mine No. 2 and Fola Surface Mine No. 6, are located in Nicholas and Clay counties and both dump mine waste into valley fills located in tributaries to Leatherwood Creek.

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, and are extremely expensive to treat. The court’s decision, which followed a multi-day trial and extensive briefing, rejected every defense and expert opinion put forward by the mining industry. The action was brought against Fola Coal by Ohio Valley Environmental Coalition, Sierra Club and West Virginia Highlands Conservancy.

“This is a great victory for West Virginia waters and the animal and human communities that rely on clean, healthy water to survive,” said Liz Wiles, Chair of Sierra Club’s West Virginia Chapter. “This is also a reminder to the coal industry that they cannot abandon their responsibilities and leave West Virginia taxpayers with the bill and the burden of cleaning up environmental degradation left behind by coal mining.”

“Citizen enforcement has shown that the science is clear and that mine discharges have devastating effects on aquatic life,” said Jim Hecker, Environmental Enforcement Director at Public Justice. “This is the third time that a federal court has ruled, after a trial with lengthy expert testimony, that West Virginia surface coal mines are causing serious stream impairment.  All three of these cases were brought by citizens, not by West Virginia or the US Environmental Protection Agency.  The court’s post-trial decision today demonstrates the continuing need for citizen enforcement to protect water quality from this harmful mining pollution.”

The court found that there was indeed a preponderance of evidence that Fola Coal violated its permits by discharging high levels of pollution into Cogar Hollow and Road Fork. These tributaries of Leatherwood Creek show significant damage to aquatic life compared to that in unpolluted streams.  More than 60% of the land area in the Leatherwood Creek watershed has been permitted for coal mining.

“We’re glad that the court agreed that high conductivity is causing biological impairment in these streams. We hope Consol will be required to spend what it takes to minimize this serious problem. It is really scary that MTR-related conductivity is also impairing streams all over Appalachia at the same time that major mountaintop removal mine companies are going bankrupt. Questions are now being raised about these companies’ financial ability to take expensive measures to prevent more damage to the life in streams. This is a clear warning that no more mountaintop removal operations should be permitted, and that any new permits for new MTR mines should be revoked,” said Dianne Bady of the Ohio Valley Environmental Coalition.

The U.S. Environmental Protection Agency has estimated that nine out of 10 streams downstream from valley fills associated with coal mines are biologically impaired.  But neither the state of West Virginia nor the EPA has taken action to require compliance and cleanup of the impaired streams.  Congress authorized citizen suits under the Clean Water Act to enforce the law directly against permit violators like Fola.

“As the court recognized, the loss of aquatic life and insects in streams is an important measure of stream health,” says Cindy Rank Chair of the Mining Committee of the West Virginia Highlands Conservancy. “As the health of our waters decline, so do the chances of our communities — who use and depend on those waters – to thrive.”

Ohio Valley Environmental Coalition, Sierra Club and West Virginia Highlands Conservancy were represented in this matter by Jim Hecker of Public Justice and Mike Becher and Joe Lovett of Appalachian Mountain Advocates.