ROBERT C. CHAMBERS, Chief Judge.
On December 3-4, 2013, the Court held a trial in this case regarding jurisdiction and liability,
Plaintiffs bring this action pursuant to the citizen suit provisions of the Federal Water Pollution Control Act ("Clean Water Act" or "CWA") and the Surface Mining Control and Reclamation Act ("SMCRA"). Plaintiffs allege that Defendants Elk Run Coal Company, Inc., ("Elk Run") and Alex Energy, Inc., ("Alex Energy") violated these statutes by discharging excessive amounts of ionic pollution, measured as conductivity and sulfates, into the waters of West Virginia in violation of their National Pollutant Discharge Elimination System ("NPDES") permits and their West Virginia Surface Mining Permits. Before proceeding to the parties' arguments, the Court will first discuss the relevant 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 an 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
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.
West Virginia's water quality standards are violated if wastes discharged from a surface mining operation "cause ... or materially contribute to" 1) "[m]aterials in concentrations which are harmful, hazardous or toxic to man, animal or aquatic life" or 2) "[a]ny other condition ... which adversely alters the integrity of the waters of the State." Id. § 47-2-3.2.e, -3.2.i. Additionally, "no significant adverse impact to the chemical, physical, hydrologic, or biological components of aquatic ecosystems shall be allowed." Id. § 47-2-3.2.i.
As the Court ruled in its November 26, 2013, Memorandum Opinion and Order, ECF No. 87, 2013 WL 6190011, Plaintiffs have established constitutional standing. However, that Order did not address the three statutory requirements which must be established in order to properly bring a citizen's suit under the CWA and the SMCRA. Thus, the Court must address these requirements now.
Under the CWA and the SMCRA, no citizen suit may be commenced prior to the provision of sixty days' notice to the alleged violator, to the Administrator of the EPA (for CWA citizen suits) or the Secretary of the Department of the Interior (for SMCRA citizen suits), and to the state in which the alleged violation occurs. 30
Plaintiffs sent a letter to the appropriate recipients which provided the necessary details for valid notice of suit on January 11, 2012.
The CWA's citizen suit provision also states,
33 U.S.C. § 1365(a)(1) (emphasis added). The SMCRA's citizen suit provision states,
30 U.S.C. § 1270(a)(1) (emphasis added). The Supreme Court has interpreted the phrase "to be in violation" in this context to require "that citizen-plaintiffs allege a state of either continuous or intermittent violation — that is, a reasonable likelihood that a past polluter will continue to pollute in the future." Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc. ("Gwaltney III"), 484 U.S. 49, 57, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987).
The issue of what evidence must be shown for jurisdictional purposes is distinct from what evidence must be shown for a defendant to ultimately be held liable for violations of the CWA and the SMCRA. See Chesapeake Bay Found., Inc. v. Gwaltney of Smithfield, Ltd. ("Gwaltney IV"), 844 F.2d 170, 171 (4th Cir.1988) (drawing a distinction between making "a good faith allegation of ongoing
Accordingly, the Court must consider what constitutes a sufficient good-faith belief for jurisdictional purposes. In the district court case which eventually gave rise to the Supreme Court's Gwaltney III decision, the Eastern District of Virginia considered this question:
Chesapeake Bay Found. v. Gwaltney of Smithfield, Ltd. ("Gwaltney I"), 611 F.Supp. 1542, 1549 n. 8 (E.D.Va.1985) (citations omitted) (internal quotation marks omitted), aff'd, 791 F.2d 304 (4th Cir.1986) ("Gwaltney II"), vacated on different grounds in Gwaltney III, 484 U.S. 49, 108 S.Ct. 376. In Gwaltney I, the district court found that "there was no certainty... — legal, factual, or otherwise — that [the defendant's] system would correct one of the two major violation problems for which this suit was brought — until nearly one year after the suit was filed." Id. In view of that finding, that district court ruled that the Gwaltney I plaintiffs had sufficiently pled a violation in good faith.
In the Complaint, Plaintiffs allege that, since mining began and through to the present day, Elk Run's discharges into Laurel Creek from the East of Stollings Surface Mine and the White Castle No. 1 Surface Mine have resulted in extremely high conductivity levels in the creek, usually exceeding 1,000 μS/cm and frequently exceeding 3,000 μS/cm, when substantial and increasing aquatic life impacts occur as conductivity increases beyond 300 μS/cm. See Compl. ¶¶ 32-43. They also allege that the EPA measured a West Virginia Stream Condition Index ("WVSCI")
Defendants do not challenge Plaintiffs' contention that they have sufficiently alleged, in good faith, that Defendants are in continuous or intermittent violation of the CWA and the SMCRA. The Court thus finds that both the CWA's and the SMCRA's requirement that the Complaint contain a good-faith allegation of continuous or intermittent violation against each Defendant has been met by Plaintiffs in this case.
Before making any findings regarding liability, the Court must address arguments made by Defendants which, according to Defendants, bar this Court from ruling in favor of Plaintiffs or, in the alternative, limit and direct this Court's analysis.
Defendants argue that this Court cannot rule in Plaintiffs' favor because doing so would effectively create a conductivity water quality effluent limit — precisely the action which a federal district court, in National Mining Association v. Jackson, 880 F.Supp.2d 119, 137-38 (D.D.C.2012), ruled to be beyond the authority of the EPA, despite the EPA's otherwise broad powers under the CWA.
First, the Court notes that the operative document in Jackson was the EPA's July 21, 2011, Final Guidance document, entitled "Final Memorandum: Improving EPA Review of Appalachian Surface Coal Mining Operations Under the Clean Water Act, National Environmental Policy Act, and the Environmental Justice Executive Order." See id. at 127. In contrast, the document which Plaintiffs referenced at trial and to which Defendants here object is an entirely different document, released by the EPA in March 2011 and entitled "A
Importantly, unlike Jackson, this case does not result from a direct assertion of regulatory authority by the EPA. Instead, this case is a citizen suit, brought under 33 U.S.C. § 1365, which alleges that Defendants violated a term in their permits by discharging materials which have caused or materially contributed to a significant adverse impact to the chemical or biological components of aquatic ecosystems, in violation of West Virginia's narrative water quality standards. The EPA's Benchmark is not relied upon by Plaintiffs to demonstrate that the EPA set a particular effluent limit which, if exceeded, automatically results in a violation of water quality standards, and the Court will not treat it as such. Instead, it is used by Plaintiffs as a scientific study, among others, which supports Plaintiffs' general causation argument that high conductivity levels in streams, caused by surface mining, lead to the extirpation of some types of benthic macroinvertebrates. Thus, Defendants' comparison of this case to Jackson is inapposite. The holdings in Jackson simply do not apply to this case.
In the alternative, Defendants argue that this Court must follow the WVDEP's and/or the West Virginia legislature's interpretations and guidance regarding West Virginia's water quality standards when analyzing Plaintiffs' evidence and arguments. Specifically, Defendants argue that the Court must follow: 1) the WVDEP's assessment that high conductivity levels do not cause low WVSCI scores, as explained in its August 12, 2010, "Justification and Background for Permitting Guidance for Surface Coal Mining Operations to Protect West Virginia's Narrative Water Quality Standards, 47 C.S.R. 2 §§ 3.2.e and 3.2.i" ("WVDEP's Guidance"), Joint Ex. 55; 2) the WVDEP's instruction, also in its Guidance, that a stand-alone WVSCI score cannot be the sole determinant of compliance with West Virginia's narrative water quality standards and that, instead, analysis of the phrase "significant adverse impact" in the water quality standards requires a holistic approach, through which the investigator must determine whether a material decline in the overall health of an aquatic system has occurred; 3) the West Virginia legislature's instruction, through its passage of House Concurrent Resolution 111 ("H.C.R. 111") and of Senate Bill 562 ("S.B. 562"), and the WVDEP's instruction, in its Guidance, that this holistic approach requires proof of effects on fish, not just invertebrates, in order to find a violation; and 4) the WVDEP's instruction, in its Guidance, that the proper WVSCI score at which to list a stream as "impaired" under Section 303(d) of the CWA is 60.6, not 68. The Court will address each of these arguments in turn.
Regarding its finding that there is no causative effect between high conductivity and low WVSCI scores, the WVDEP, in its Guidance, states:
WVDEP's Guidance at 5-6 (footnote omitted). At this point in the Guidance, the WVDEP is explaining its choice to not require a specific numeric limit on conductivity in order to meet the state's water quality standards, despite the EPA's apparent insistence that it do so. Importantly, here, the WVDEP is not directly interpreting its own regulations or any of the state statutes which it administers.
The Court can find no basis for substituting the WVDEP's general judgment that there is no causative effect between high conductivity and low WVSCI scores for the extensive scientific evidence in this case which reveals precisely this causative effect.
Regarding the need for a "holistic approach" — and not solely a stand-alone WVSCI score — in determining whether the state's narrative water quality standards have been violated, the WVDEP, in its Guidance, states:
WVDEP's Guidance at 2, 3 & n. 7, 4-6.
It is apparent to the Court that, through its Guidance, the WVDEP intends to interpret the biologically-based subset of the state's narrative water quality standards under West Virginia Code of State Rules § 47-2-3.2. Section 47-2-3.2 is part of a legislative rule originally proposed by the WVDEP and necessarily affirmed through a legislative authorization process, as required by West Virginia Code Chapter 29A. See W. Va.Code § 29A-1-2(d) ("Unless lawfully promulgated as an emergency rule, a legislative rule is only a proposal by the agency and has no legal force or effect until promulgated by specific authorization of the legislature." (emphasis added)); W. Va.Code R. § 47-2-1.2, -1.4.
A reviewing court is only required to afford deference, if any, to an agency's interpretation of its own legislative rule if the regulation contains an ambiguity. Cookman Realty Grp., Inc. v. Taylor, 211 W.Va. 407, 566 S.E.2d 294, 298 (2002). "In the absence of any definition of the intended meaning of words or terms used in a regulation, they will be given their common, ordinary and accepted meaning in the connection in which they are used." Lawyer Disciplinary Bd. v. Smoot, 228 W.Va. 1, 716 S.E.2d 491, 502 n. 23 (2010) (brackets omitted) (internal quotation marks omitted). A court interpreting a statute has a "duty to avoid whenever possible an application of a statute which leads to absurd, inconsistent, unjust or unreasonable results." Davies v. W. Va. Office of Ins. Comm'r, 227 W.Va. 330, 708 S.E.2d 524, 530 (2011) (brackets omitted) (internal quotation marks omitted). "Where a particular construction of a statute would result in an absurdity, some other reasonable construction, which will not produce such absurdity, will be made." Id. (internal quotation marks omitted). "In giving effect to a word employed in a legislative enactment, it is a fundamental principle of statutory construction that the meaning of a word cannot be determined in isolation, but it must be drawn from the context in which it is used." Osborne v. United States, 211 W.Va. 667, 567 S.E.2d 677, 684 (2002) (brackets omitted) (internal quotation marks omitted). "Additionally, in the interpretation of statutes, words and phrases therein are often limited in meaning and effect, by necessary implications arising from other words or clauses thereof." Id. (brackets omitted) (internal quotation marks omitted).
Section 47-2-3.2 — the rule which the WVDEP intends to partially interpret in the Guidance passages quoted above — states, in pertinent part:
W. Va.Code R. § 47-2-3.2, -3.2.e, -3.2.i.
Plaintiffs bring this case under subsections 3.2.e and 3.2.i. None of the operative wording in either subsection appears in the definitions sections which apply to § 47-2-3.2. See W. Va.Code § 22-11-3; W. Va.Code R. § 47-2-2. The Court finds that subsection 3.2.e, when read alone, is unreasonable and creates an absurdity. Giving the operative words in subsection 3.2.e their common, ordinary and accepted meaning in the context in which they are used, a literal reading of subsection 3.2.e leads to the conclusion that any wastes which materially contribute to even the most miniscule harm to a single aquatic creature result in a violation of West Virginia's narrative water quality standards. On the other hand, the final directive in the narrative water quality standards — "no significant adverse impact to the chemical, physical, hydrologic, or biological components of aquatic ecosystems shall be allowed" — appears after a semicolon in subsection 3.2.i. The placement of this directive at the end of all of the narrative water quality standards — and the fact that it is clearly grammatically unmoored from the introductory wording of § 47-2-3.2, which states, "No ... wastes present in any of the waters of the state shall cause therein or materially contribute to any of the following conditions thereof ..." — indicates to this Court that the directive informs each of the specific subsections listed before it. In order to avoid an absurdity and based upon the grammatically distinct structure of this final directive, it appears to this Court that the directive "no significant adverse impact to the chemical, physical, hydrologic, or biological components of aquatic ecosystems shall be allowed" modifies subsection 3.2.e, such that "harm" to "aquatic life" requires a showing of a "significant adverse impact to the ... biological components of aquatic ecosystems."
However, the operative phrases in subsection 3.2.i — "significant adverse impact" and the "biological components of aquatic ecosystems" — are ambiguous. The U.S. Supreme Court has ruled that "[w]hen a[ ] [federal] agency interprets its own regulation, [a federal court], as a general rule, [must] defer[ ] to it unless that interpretation
The West Virginia Supreme Court of Appeals has not ruled as to what level of deference, if any, a state agency's interpretation of a state legislative rule should receive. See Cookman Realty Grp., 566 S.E.2d at 298. Nevertheless, this Court finds that West Virginia law regarding interpretive and legislative rules resolves the issue. West Virginia Code § 29A-1-2(i) defines the word "rule" as follows:
W. Va.Code § 29A-1-2(i) (emphasis added). West Virginia Code § 29A-1-2(d) deals with legislative rules:
W. Va.Code § 29A-1-2(d) (emphasis added). West Virginia Code § 29A-1-2(c) deals with interpretive rules:
W. Va.Code § 29A-1-2(c) (emphasis added).
It is apparent to this Court that the WVDEP's Guidance is an interpretive rule. The West Virginia Supreme Court of Appeals has clarified that, "`[a]lthough [interpretive rules] are entitled to some deference from the courts, [they] do not have the force of law nor are they irrevocably binding on the agency or the court. They are entitled on judicial review only to the weight that their inherent persuasiveness commands.'" Hornbeck v. Caplinger, 227 W.Va. 611, 712 S.E.2d 779, 785 (2011) (quoting Appalachian Power Co. v. State Tax Dep't of W. Va., 195 W.Va. 573, 466 S.E.2d 424, 444 (1995)); see also Cookman Realty Grp., 566 S.E.2d at 304-05 (Starcher, J., concurring) ("I discern no basis for affording Chevron deference to an agency's informal interpretation of its own regulations, where we have otherwise refused to do so in the case of formal interpretive rules promulgated pursuant to the notice-and-comment provisions of W. Va.Code, 29A-3-8. Indeed, to do so would run afoul of the spirit, if not the letter, of the Legislature's admonition that such interpretive rules should not be given controlling weight unless they are issued pursuant to a legislative grant of discretion...." (citation omitted)). Thus, the WVDEP's Guidance is only due deference from this Court to the extent of its inherent persuasiveness.
"[T]he rulings, interpretations and opinions of [an agency], while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance." Hornbeck, 712 S.E.2d at 785 (internal quotation marks omitted). "The weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control." Id. (internal quotation marks omitted).
The WVDEP, through its Guidance, appears to interpret subsection 3.2.i — and, thus, also subsection 3.2.e — in two ways. First, it purports to further define the biological standard in subsection 3.2.i — "significant adverse impact to the ... biological components of aquatic ecosystems"
To the extent that the WVDEP further defines the biological standard in subsection 3.2.i to mean "a material decline in the overall health of an aquatic ecosystem" — with no further definition of "material," "overall health" or "aquatic ecosystem" —, the Court sees no reason to defer to such an interpretation. This phrase merely restates the applicable standard — a "significant adverse impact to the ... biological components of aquatic ecosystems" —, such that it is not really an interpretation as much as a rewording. To the extent that Defendants argue that the WVDEP is interpreting subsection 3.2.i to
To the extent that the WVDEP purports to redefine the methodology used to find a violation of the biological standard in subsection 3.2.i to include a "holistic approach to ecosystem assessment," which is wholly undefined except that it requires something more than solely obtaining a WVSCI score, the Court does not find such a redefinition persuasive or, indeed, even permissible. The profound issue with the WVDEP's new-found "methodology" is that it is actually an absence of methodology. The WVDEP states that an undefined "holistic approach" is needed and that a low WVSCI score alone is not enough to find a violation, thus negating the WVDEP's own previous practice of using WVSCI scores to define whether a violation of the biological standard in subsection 3.2.i was occurring, such that a stream needed to be listed as "impaired" under Section 303(d) of the CWA. See WVDEP Division of Water and Waste Management, 2012 Draft West Virginia Integrated Water Quality Monitoring and Assessment Report 15-16 (2012) ("WVDEP 2012 Draft Report"), Joint Ex. 119 at JE 316-317.
The void created by the WVDEP in rejecting its prior practice of relying upon WVSCI scores is not filled by any other methodology. Instead, as indicated by the WVDEP's more recent statements in West Virginia's draft 2012 Section 303(d) list of impaired waters, the WVDEP's enforcement of the biological narrative water quality standards embodied in § 47-2-3.2.e and -3.2.i has come to nearly a stand-still as a result of its current lack of a methodology for assessing violations of those standards. Id. at JE 316 ("In response to [S.B. 562, which requires that the WVDEP promulgate new rules incorporating the three-part test originally outlined in H.C.R. 111], [the WV]DEP is not adding new biological impairments to the 2012 Section 303(d) list."). As explained below, it is this very abdication of responsibility by the WVDEP which required the EPA to step in and conduct its own assessment of West Virginia's biological narrative water quality standards — embodied in § 47-2-3.2.e and -3.2.i — for the purposes of completing West Virginia's 2012 Section 303(d) list of impaired waters. Letter from Shawn M. Garvin, Regional Administrator, EPA, to Randy C. Huffman, Secretary, WVDEP, at 1 (Mar. 25, 2013) ("Mar. 25, 2013, Letter from EPA to WVDEP"), Joint Ex. 118 at JE 276; see also 33
Instead, this Court will continue to follow the WVSCI methodology for determining compliance with the biological narrative water quality standards in § 47-2-3.2.e and -3.2.i. There are multiple reasons which require this decision. First, WVSCI was the last methodology used by the WVDEP to define whether a violation of the biological standard in subsection 3.2.i was occurring, such that a stream needed to be listed as "impaired" under Section 303(d) of the CWA.
In 2010, the West Virginia legislature passed H.C.R. 111, which states, in pertinent part:
H. Con. Res. 111, 2010 Legis., Reg. Sess. (W.Va.2010).
First, it is important to note that H.C.R. 111 is not a properly promulgated statute. Instead, it is a concurrent resolution; thus, according to the West Virginia Supreme Court of Appeals, it has no force of law, in and of itself. State ex rel. Barker v. Manchin, 167 W.Va. 155, 279 S.E.2d 622, 633 (1981) ("Joint or concurrent resolutions, while they may bind the members of the legislative body, are not statutes and do not have the force and effect of law."). Further, in H.C.R. 111, the legislature explicitly states its intention to affect the interpretation of West Virginia's narrative water quality standards, as embodied in West Virginia Code of State Rules § 47-2-3, which, as explained earlier, is part of a legislative rule originally proposed by the WVDEP — an administrative agency — and affirmed by the legislature. The West Virginia Supreme Court of Appeals has stated that, though "the Legislature has the power to void or to amend administrative rules and regulations, when it exercises that power it must act as a legislature... within the confines of the enactment procedures mandated by [the West Virginia] [C]onstitution.[
Here, it is apparent to the Court that the West Virginia legislature, through H.C.R. 111, attempted to modify West Virginia's narrative water quality standards. The specific modification detailed by the resolution is that a violation of West Virginia's narrative water quality standards does not occur — although a violation of one of the subsections of § 47-2-3
In 2012 — two years after H.C.R. 111 was passed and the WVDEP published its Guidance —, the West Virginia legislature passed S.B. 562. S.B. 562 states, in pertinent part:
S.B. 562, 80th Leg., Reg. Sess. (W.Va. 2012) (emphasis omitted).
The Court first notes that S.B. 562, unlike H.C.R. 111, is a duly-enacted statute.
To summarize, this Court has found that 1) H.C.R. 111 lacks the force of law to directly modify § 47-2-3.2, 2) the WVDEP did not adopt the three-part test from H.C.R. 111 through its Guidance, and 3) S.B. 562 does not directly modify § 47-2-3.2. Thus, the Court need not defer to this test even to the extent of its persuasiveness.
Further, the test, itself, does not require proof of effects on fish in order to find a violation. The direct inverse of the test shows that a violation of West Virginia's narrative water quality standards can occur "when a stream (a) [does not] support[] a balanced aquatic community that is diverse in species composition; [or] (b) [does not] contain[] appropriate trophic levels of fish (in streams with sufficient flows to support fish populations); [or] (c) [sic] the aquatic community is [] composed only of pollution tolerant species [and] the aquatic community is [not] composed of benthic invertebrate assemblages sufficient to perform the biological functions necessary to support fish communities within the assessed reach (or, if the assessed
Defendants argue that Plaintiffs cannot prove a violation of West Virginia's narrative water quality standards at a particular location by merely showing that a WVSCI score at that location falls below 68, particularly because the WVDEP historically did not list a stream as "impaired" under Section 303(d) of the CWA unless scores at the stream fell below 60.6; thus, according to Defendants, to the extent this Court relies on WVSCI scores in determining liability, it should only rely on scores below 60.6. Plaintiffs argue that the EPA 1) found the WVDEP's use of 60.6 as the cutoff for impairment of streams to be "statistically unsupportable" and 2) declared that all scores within the "gray zone" between 60.6 and 68 indicate that the waters from which such scores were obtained "do not achieve the West Virginia narrative criteria as applied to aquatic life uses," since 68 is the proper cutoff score. Pls.' Post-Trial Brief at 21, ECF No. 106. Plaintiffs further argue that such findings by the EPA overrule any contrary findings by the WVDEP because the EPA declared that West Virginia's narrative water quality standards are federal, not state, requirements.
As explained earlier, WVSCI scoring was the most recent methodology used by the WVDEP — and is still used by the EPA — to determine whether West Virginia streams are biologically "impaired" — meaning that they are waters for which numeric effluent limitations are not stringent enough to maintain the biological narrative water quality standards embodied in § 47-2-3.2.e and -3.2.i — under Section 303(d) of the CWA. See 33 U.S.C. § 1313(d)(1)(A); Mar. 25, 2013, Letter from EPA to WVDEP at JE 293; WVDEP 2012 Draft Report at JE 316-317.
Regarding the proper WVSCI score cutoff at which the WVDEP historically listed a stream as "impaired" under Section 303(d) of the CWA, the WVDEP's Guidance states:
WVDEP's Guidance at 5.
The statute which requires the compilation of Section 303(d) lists of "impaired" waters by the states specifies: "Each State shall identify those waters within its boundaries for which the effluent limitations... are not stringent enough to implement any water quality standard applicable
Id. § 1313(d)(2) (emphasis added). EPA regulations delegate the authority of the Administrator of the EPA in § 1313(d)(2) to regional EPA administrators. 40 C.F.R. § 130.7(d). Thus, under federal law, an EPA regional administrator has the final authority to determine which waters within his region are "impaired" according to the water quality standards applicable to those waters.
In March 2013, the EPA Regional Administrator for Region III partially approved and partially disapproved West Virginia's 2012 Section 303(d) list of impaired waters, which had been submitted by the WVDEP. Mar. 25, 2013, Letter from EPA to WVDEP at JE 276-77. The partial disapproval of the list, according to the Regional Administrator, was the result of the "WVDEP's decision not to evaluate... data regarding whether certain waters [were] achieving West Virginia's narrative water quality criteria (W. Va. CSR § 47-2-3.2(e) & (i)) as applied to the aquatic life uses." Id. at JE 276. As explained earlier, it was then — and is now — the WVDEP's position that "pending completion and adoption by rulemaking of a new methodology, [the WVDEP] is precluded by [S.B. 562] from evaluating waters for [the] purposes of determining compliance with the narrative water quality criteria as applied to the aquatic life uses." Id.; see also WVDEP 2012 Draft Report at JE 316.
Thus, pursuant to its authority under § 1313(d)(2), the EPA conducted the evaluation of whether West Virginia's waters were achieving the state's biological narrative water quality standards using WVSCI — which had been used by the WVDEP for the development of West Virginia's Section 303(d) lists since 2002 —, given that the WVDEP had "acknowledged in the past [that] WVSCI was a valid means of assessing compliance with West Virginia's currently applicable narrative water quality criteria as applied to the aquatic life uses."
The EPA did note, however, that it did not incorporate into its evaluation the "statistically unsupported" "gray zone" of
As explained earlier, the WVDEP currently has no methodology for assessing whether violations of the biological narrative water quality standards embodied in § 47-2-3.2.e and -3.2.i are occurring, and in 2012, the WVDEP flatly refused to use WVSCI scores to make such determinations. Given that the EPA has final authority under Section 303(d) to determine whether a stream is biologically impaired, such that the narrative water quality standards embodied in § 47-2-3.2.e and -3.2.i are being violated, given the EPA's detailed and persuasive discussion of the statistical support for using 68 — and not 60.6 — as the cutoff,
As explained earlier, the Court is crediting the EPA's specific finding — under its Section 303(d) authority — that a WVSCI score below the impairment threshold of 68 indicates a violation of West Virginia's biological narrative water quality standards, as embodied in § 47-2-3.2.e and -3.2.i, in the stream where the score was assessed. However, that finding does not specify the cause of such low scores, as there are many possibilities.
Plaintiffs' general causation theory in this case is that 1) surface mining causes — or at least materially contributes to — high conductivity in adjacent streams and, 2) controlling for other potential confounding factors, high conductivity in streams is scientifically proven to cause or materially contribute to a significant adverse impact to the chemical or biological components of aquatic ecosystems — proof of which can be shown through low WVSCI scores. The Court will now assess the evidence presented at trial to determine
First, it is important to note that the EPA has spoken to both general causation theories 1) through its October 2005 "Mountaintop Mining/Valley Fills in Appalachia Final Programmatic Environmental Impact Statement" ("EIS") and, most importantly, 2) through its March 2011 Benchmark, entitled "A Field-Based Aquatic Life Benchmark for Conductivity in Central Appalachian Streams." Pls.' Ex. 9; see Tr. at 61-62. In its EIS, the EPA identified two downstream impacts from mountaintop mining valley fills: 1) increases in conductivity and 2) decreases in the number of invertebrate taxa. See Tr. at 62.
In its nearly three-hundred page scientific Benchmark — 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 — the EPA found that "salts, as measured by conductivity, are a common cause of impairment of aquatic macroinvertebrates" in Central Appalachian streams. 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 Benchmark 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 salt 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.
Plaintiffs' expert Dr. Margaret Palmer testified that the Benchmark was authored by scientists who had published important papers in the area of mountaintop mining, conductivity, and macroinvertebrate effects and that, before publication, the Benchmark was reviewed by a scientific advisory board, which itself was composed of top scientists who possessed expertise in the area. See Tr. at 69-71. Plaintiffs' expert Dr. Ryan King described the peer
"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., 344 F.3d at 869 ("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).
There is no question in this case that the content of the EPA's Benchmark falls within the agency's special area of expertise; thus, the Court owes deference to the EPA's scientific determinations as long as the agency's reasoning and conclusions are rational. The Benchmark easily clears
Even if the Court had not deferred to the EPA's conclusions in its Benchmark, it would still find that Plaintiffs have proven by a preponderance of the evidence that 1) surface mining causes — or at least materially contributes to — high conductivity in adjacent streams and, 2) controlling for other potential confounding factors, high conductivity in streams is scientifically proven to cause or materially contribute to a significant adverse impact to the chemical and biological components of aquatic ecosystems. First, the science in the EPA's Benchmark regarding these two causation theories is independently compelling. Second, two of the authors of the Benchmark, Dr. Susan Cormier and Dr. Glenn Suter, subsequently published four different peer-reviewed journal-article versions of several sections of the EPA's Benchmark — including the section regarding the causal link between conductivity and biological impairment and the section ruling out potential confounding factors — in the scientific journal Environmental Toxicology and Chemistry.
Third, numerous other scientific articles published in peer-reviewed journals-both before and after publication of the Benchmark — lead to the same conclusions. In 2008, Dr. Gregory Pond-who would later be one of the contributors to the EPA's Benchmark — published a peer-reviewed scientific article in the Journal of the North American Benthological Society, based upon a field study he conducted which found that, as surface coal mining with valley fills — and its associated conductivity — increased, benthic macroinvertebrate taxa decreased. See Gregory J. Pond et al., Downstream Effects of Mountaintop Coal Mining: Comparing Biological Conditions Using Family — and Genus-Level Macroinvertebrate Bioassessment Tools, 27 J.N. Am. Benthological Soc'y 717 (2008), Pls.' Ex. 15; Tr. at 64-65; Pls.' Ex. 9. Dr. Palmer testified that the Journal of the North American Benthological Society
In 2010, Dr. Palmer and a colleague, Dr. Emily Bernhardt, published a peer-reviewed scientific article in Science magazine — one of the premier scientific journals worldwide, according to Dr. Palmer —, which found that as mining increased, conductivity and sulfate — one of the constituent ions measured by conductivity — increased and there was a coincident decline in a number of biological metrics, including WVSCI scores. M.A. Palmer et al., Mountaintop Mining Consequences, 327 Sci. 148 (2010), Pls.' Ex. 13; Tr. at 63, 65-67. Also in 2010, Dr. Pond published another peer-reviewed article, this time in the journal Hydrobiologia, which found that mayflies — which are normally common inhabitants of Appalachian streams-often reduced in number in or were eliminated from mined areas and that relative mayfly abundance was most strongly correlated with conductivity, not habitat. Gregory J. Pond, Patterns of Ephemeroptera Taxa Loss in Appalachian Headwater Streams, Hydrobiologia, Mar. 2010, at 185, Pls.' Ex. 16 (draft version); Tr. at 67.
In 2011, Dr. Palmer and Dr. Bernhardt published another peer-reviewed article, this time in the Annals of the New York Academy of Sciences, which found that conductivity, which is associated with coal mining, leads to the loss of sensitive macroinvertebrate taxa in Central Appalachian streams. Emily S. Bernhardt & Margaret A. Palmer, The Environmental Costs of Mountaintop Mining Valley Fill Operations for Aquatic Ecosystems of the Central Appalachians, Annals N.Y. Acad. Sci., Mar. 2011, at 39, Pls.' Ex. 1; Tr. at 79. Also in 2011, Ty Lindberg and Dr. Bernhardt published a peer-reviewed article, entitled "Cumulative Impacts of Mountaintop Mining on an Appalachian Watershed," in the Proceedings of the National Academy of Sciences of the United States of America — a very prestigious journal, according to Dr. Palmer —, which found that conductivity increased in direct proportion to the extent of mining upstream. Tr. at 80-82.
In 2012, Dr. Pond published another peer-reviewed article in Hydrobiologia, which found that conductivity was an excellent indicator of how many individuals of certain types of macroinvertebrate taxa normally abundant in Appalachian streams would be found at a disturbed site. Gregory J. Pond, Biodiversity Loss in Appalachian Headwater Streams (Kentucky, USA): Plecoptera and Trichoptera Communities, Hydrobiologia, Jan. 2012, at 97, Pls.' Ex. 17. Also in 2012, Dr. Bernhardt and Dr. King published a peer-reviewed article in Environmental Science and Technology, which, according to Dr. King, is the number one journal in the field of environmental science. Emily S. Bernhardt et al., How Many Mountains Can We Mine? Assessing the Regional Degradation of Central Appalachian Rivers by Surface Coal Mining, 46 Envtl. Sci. & Tech. 8115 (2012), Pls.' Ex. 2 (draft version); Tr. at 267. The article found that streams receiving water from mining catchments had significantly higher conductivity than streams in unmined areas. Pls.' Ex. 2. It also found that, after screening out potential confounding factors, high conductivity was highly correlated with lower numbers of intolerant taxa and declining WVSCI scores.
Fourth, multiple different scientific methods were used at different times by different scientists to come to the same conclusions regarding the causal link between surface mining, conductivity, and biological impairment, which, Dr. Palmer testified, is the "strongest form of evidence" possible. Tr. at 83, 89-90, 248-52, 272, 274. For example, in its Benchmark, the EPA created a species sensitivity distribution — modeling the conductivity level at which each of 163 different genera are extirpated — which revealed that about five percent of taxa are lost at about 300 μS/cm. See EPA's Benchmark at 18-19. The Benchmark also used another method: modeling conductivity against WVSCI scores. Id. at A-35, -36. That modeled relationship revealed that the benchmark threshold of 300 μS/cm corresponded with a failing WVSCI score of 64. Id. at A-36. Using logistic regression, the probability of impairment — as measured by WVSCI — at 300 μS/cm was calculated to be 59%. Id. At 500 μS/cm, the probability of impairment was 72%. Id.; Tr. at 324. In the 2012 Bernhardt and King paper, two different methods were used to determine the biological impairment effects of conductivity: generalized additive regression models for three different biological response variables — including the number of intolerant taxa and WVSCI scores — and the Threshold Indicator Taxa Analysis ("TITAN") method, which Dr. King developed. How Many Mountains at C-D, P022-23; Tr. at 272, 274. Each of these different methods, conducted by different scientists at different times and subjected to the rigorous peer-review process required by scientific journals, resulted in the same conclusion: conductivity associated with surface mining causes biological impairment, such that about five percent of taxa are lost at about 300 μS/cm. EPA's Benchmark at 18, A-36; How Many Mountains at F; Tr. at 274.
Fifth, the Court finds the expert testimony of Dr. Palmer and Dr. King to be very persuasive. Among her many accomplishments, Dr. Palmer is a professor in the Department of Entomology at the University of Maryland, and she is the Director of the National Socio-Environmental Synthesis Center. Tr. at 52-53; Joint Ex. 28. Dr. Palmer has also published almost 150 articles in scientific journals. Tr. at 55-56; Joint Ex. 28. Further, she has specifically published and given talks in the area of conductivity, surface mining, and effects upon macroinvertebrates; she teaches classes in stream ecology; and she has been working on insects in streams and rivers, including those in the Appalachian region, for over twenty years. Tr. at 53-55; Joint Ex. 28. Based upon these qualifications, Dr. Palmer was qualified as an expert in entomology, aquatic ecology,
Dr. King is a tenured professor in the Department of Biology at Baylor University, and in the past, among other positions, he worked as an ecologist at the Smithsonian Environmental Research Center in Edgewater, Maryland. Id. at 213; Joint Ex. 44. Dr. King has published approximately fifty academic papers, about half of which focus upon aquatic entomology, and he even wrote a chapter in a book regarding North American aquatic insects. Tr. at 214; Joint Ex. 44. Dr. King also has experience in the field regarding surface mining, entomology, and Appalachian streams, and he teaches an advanced ecological data analysis course to graduate students at Baylor. Tr. at 214-15, 217; Joint Ex. 44. Based upon these qualifications, Dr. King was qualified as an aquatic ecologist, aquatic entomologist, ecological data analyst, and expert on conductivity related to surface mining in Appalachian headwater streams.
Finally, even though the WVDEP's Guidance purports to find that there is no causative effect between conductivity and low WVSCI scores, two portions of the Guidance seriously undermine this assertion and, ironically, support Plaintiffs' case. First, the Guidance includes a scatterplot graph of conductivity and associated WVSCI scores which reveals a clear reduction in WVSCI scores as conductivity increases; in fact, above 1500 μS/cm, only 2 scores out of approximately 100 fall above the passing WVSCI score threshold of 68 and the vast majority fall under 60.6. WVDEP's Guidance at 6. This strong association supports, rather than contradicts, a causal connection. Second, Figure 2 in the Guidance concludes that conductivity measurements that fall within the range of 1075-1532.9 μS/cm are "likely stressor[s]" and that measurements above 1533 μS/cm are "definite stressor[s]." Id. at 7. Almost all of the recent conductivity measurements at the sites at issue in this case fall within these two categories; many are firmly within the "definite stressor" category. Thus, the WVDEP's Guidance is additional evidence that high levels of conductivity cause biological impairment.
In the face of such overwhelming scientific evidence,
Elk Run owns and operates the White Castle No. 1 Surface Mine and the East of Stollings Surface Mine, both in Boone County, West Virginia. Stip. ¶¶ 1, 12, Joint Ex. 57. Each mine is regulated both by WV/NPDES permits and by West Virginia Surface Mining Permits issued by the WVDEP under the CWA and the SMCRA. Id. ¶¶ 3, 14. The East of Stollings Surface Mine has seven valley fills that discharge from Outfalls 001 through 007 and 019 into Mudlick Fork and Stalling Fork, tributaries of Laurel Creek. Id. ¶ 13. The White Castle No. 1 Surface Mine has seven valley fills that discharge from Outlets 001, 002, 003, 004, and 017 directly into Laurel Creek. Id. ¶ 2.
On May 1, 2013, Plaintiffs' sampler, Evan Hansen of Downstream Solutions, collected water samples 1) directly from East of Stollings Surface Mine Outfalls 019, 002, and 003 — respectively, from upstream to downstream —, which empty into Mudlick Fork, 2) directly from East of Stollings Surface Mine Outfalls 007, 006, 005, and 004 — respectively, from upstream to downstream —, which empty into Stalling Fork, 3) from an instream sample site in upper Laurel Creek ("ULC") — after Mudlick Fork and Stalling Fork converge into Laurel Creek —, and 4) from an instream sample site in downstream Laurel Creek ("DLC") — after the outfalls from the White Castle No. 1 Surface Mine have also emptied into Laurel Creek. Joint Exs. 60, 91; Tr. at 30-36. While on site, Mr. Hansen documented the temperature, conductivity, dissolved oxygen, and pH of the water from which he collected the samples. Tr. at 41; Joint Exs. 5-6.
On September 20, 2012, and on May 1, 2013, Dr. Christopher Swan, also hired by Plaintiffs, collected biological samples from ULC and DLC and calculated WVSCI scores from those samples. Tr. at 8, 18-19, 43; Joint Exs. 24-27; Pls.' Ex. 18a; Defs.' Ex. 128 at 7. On September 20, 2012, Dr. Swan also collected water samples from those sites and documented the temperature, conductivity, dissolved oxygen, and pH of the water from which he collected the samples.
The following table compiles the data collected at ULC, DLC, Neal Branch, 17332, and Ash Fork by each of the three samplers:
ULC DLC Neal Branch 17332 Ash Fork
WVSCI:
Swan (9/20/12) 51.70 55.81 - - -
Swan (5/1/13) 44.05 37.96 - - -
Conductivity
(μS/cm):
Swan (9/20/12) 2,360 1,917 - - -
Hansen (5/1/13) 2,425 1,678 - - -
Menzie (7/12/13) 2,280 1,906 40 39 29
pH:
Swan (9/20/12) 7.7 7.6 - - -
Hansen (5/1/13) 8.0 6.4 - - -
Menzie (7/12/13) 8.18 8.13 6.98 6.96 6.63
Temperature (°C):
Swan (9/20/12) 12.2 14.0 - - -
Hansen (5/1/13) 14.3 13.9 - - -
Menzie (7/12/13) 23.79 26.67 18.85 20.09 18.53
The following table compiles the key
ULC DLC Neal Branch 17332 Ash Fork
Total Dissolved 1.517 1.201 0.029 0.028 0.022
Solids (g/L)
Turbidity (NTU+) -12.2 -50.1 -38.5 -43.5 -39.4
Embeddedness 29 7 8 18 15 20
(Marginal)30 (Marginal)31 (Optimal) (Suboptimal)32 (Optimal)
Epifaunal 8 10 17 16 18
Substrate 33 (Marginal) (Marginal) (Optimal) (Optimal) (Optimal)
Sediment 13 11 17 12 18
Deposition 34 (Suboptimal) (Suboptimal) (Optimal) (Suboptimal) (Optimal)
Total RBP Score 116.5 122 161 147 173
(Suboptimal) (Suboptimal) (Optimal) (Suboptimal) (Optimal)
In order to prove that Elk Run has committed at least one violation of its permits, Plaintiffs must demonstrate, by a preponderance of the evidence, that 1) high conductivity in upper and/or downstream Laurel Creek is causing or materially contributing to a significant adverse impact to the chemical or biological components of the creek's aquatic ecosystems and 2) Elk Run's White Castle No. 1 Surface Mine and/or East of Stollings Surface Mine are the cause of — or at least materially contributing to — this high conductivity.
First, reviewing the conductivity and WVSCI data collected — by the WVDEP, the EPA, Mr. Hansen, Dr. Swan, Dr. Menzie, Elk Run, and a previous mining company — from the specific sites nearby White
In addition, taxonomic changes to the benthic macroinvertebrate community in upper and downstream Laurel Creek reveal that conductivity — and not other potentially confounding factors, such as habitat — is the primary cause of biological impairment. First, key taxa in unimpacted Appalachian streams ("reference streams") which are known to be sensitive to high conductivity yet not very sensitive to habitat degradation, particularly mayflies (Ephemeroptera) — which were historically present at Laurel Creek —, are now entirely absent from the creek. Tr. at 255-56, 261-64, 299; see Joint Exs. 26, 27, 61; Pls.' Ex. 18a; Stip. ¶ 18. Second, taxa known to proliferate in high conductivity environments — because of reduced predation by and competition for resources
Dr. Menzie — whom Defendants hired only to "critique the technical basis for [P]laintiffs' experts arriving at the conclusions they did" regarding conductivity causing biological impairment at Laurel Creek and Robinson Fork and not to conduct any causal analysis himself — presented several potential "confounding factors" which, in his opinion, had not been adequately ruled out by Dr. Palmer and Dr. King before they concluded that conductivity was causing biological impairment at these sites. Tr. at 354-55, 382-83. Using photographs and videos he took at ULC and DLC, Dr. Menzie testified that, unlike the reference streams, 1) ULC had an open canopy, contained lots of silt from the adjacent haul road, and had periphyton all over the rocks and 2) DLC had a partly open canopy, was one of the warmest sites overall, and contained lots of silt, which had gathered on rocks and on the bottom of the creek. Id. at 371-77; see Joint Exs. 123e-f, l-o, t-u. Dr. Menzie opined that, based upon his preliminary work, temperature, pH, and siltation — particularly siltation which has built up between the rocks on the bottom of the creek, called embeddedness — are all potential causes, along with conductivity, for the biological impairment at these sites. Tr. at 256, 379-81, 411; see also Joint Exs. 132, 133, 135.
Regarding the temperatures and canopy cover observations collected by Dr. Menzie at ULC and DLC, Dr. King testified that, unequivocally, neither are sufficient to cause the level of biological impairment seen at these sites. Tr. at 238-39, 247-48,
Regarding the pH and total dissolved solids data collected by Dr. Menzie, Dr. King testified that neither metric can be viewed in isolation from the conductivity data as potential "confounding" factors because 1) conductivity measures the electrical current created by dissolved ions, 2) total dissolved solids measures the mass of those same ions, and 3) pH is a functional component of conductivity, such that it should increase when water contains extra bicarbonate — one of the component ions which is measured by conductivity. Tr. at 241-42, 443-44. Additionally, Dr. Palmer testified that the pH data for ULC and DLC are well within the tolerance range of the organisms in these streams. See id. at 405.
Regarding the sedimentation RBP scores given to ULC and DLC by Dr. Menzie, Dr. Palmer noted that they are, overall, "not that bad," given that both scores merit a rating of "suboptimal," which is ranked just below the best rating ("optimal") and above the remaining ratings of "marginal" and "poor." See id. at 409; see also Joint Ex. 133. In fact, one of the reference streams, 17332, was given a sedimentation score of 12 by Dr. Menzie, while ULC and DLC's sedimentation scores are 13 and 11, respectively. Joint Ex. 133. Additionally, the EPA's Benchmark found that, in Appalachian streams with low embeddedness scores (less than 7 — lower than the scores of 7 and 8 from ULC and DLC) but also low conductivity levels (less than 200 μS/cm), mayflies would be present 95% of the time; however, no mayflies were found at either site during both of Dr. Swan's collecting trips. See EPA's Benchmark at B-15; Joint Exs. 26, 27, 133; Tr. at 256-57, 439-40; Pls.' Ex. 18a.
While reviewing the same photos of ULC and DLC about which Dr. Menzie testified, Dr. King stated that he did not see any real sedimentation problem in these streams; instead, what he saw was calcium carbonate precipitate — with which he is very familiar based upon his studies of streams in Texas where such precipitate is common —, which is caused by the ions measured by conductivity coming out of solution and solidifying onto the rocks. See Tr. at 243-46, 292-93. Dr. King further testified that what Dr. Menzie had testified was siltation could not be, since
Regarding the overall RBP scores gathered by Dr. Menzie for ULC and DLC — which fell within the suboptimal category —, Dr. King testified that Appalachian streams commonly fall within the suboptimal category and noted that even one of Dr. Menzie's reference sites, 17332, received a score of suboptimal. Id. at 235-36; see Joint Ex. 133. Dr. King also stated that the purpose of RBP is to determine, when there is biological impairment at a site, whether habitat could be the reason for such impairment; however, in his professional experience, he has never seen scores in this range resulting in the level of biological impairment seen at these sites. Tr. at 237, see also Tr. at 446. Dr. Palmer stated that a suboptimal habitat score is not something that would worry her and that, to give context, in some of the impaired streams in which she works which are slated for restoration, the total habitat scores are 25 or 30, not 116.5 and 122, like ULC and DLC. See id. at 409-10; Joint Ex. 133. Additionally, the EPA's Benchmark found that, in Appalachian streams with low total habitat scores (less than 115 — lower than the scores at these sites) but also low conductivity levels (less than 200 μS/cm), mayflies would be present 99% of the time; however, no mayflies were found at either ULC or DLC during both of Dr. Swan's sampling trips. See EPA's Benchmark at B-11; Tr. at 438-39; Joint Exs. 26, 27, 133; Pls.' Ex. 18a.
Despite reviewing all of the information gathered by Dr. Menzie, both Dr. King and Dr. Palmer continued to conclude that habitat — including temperature, pH, and siltation — simply was not the cause of biological impairment at these sites.
At trial, Defendants attempted to rebut the specific causation element of Plaintiffs' case regarding both sites by claiming that, contrary to the EPA's CADDIS method for determining the cause of biological impairment, Dr. Palmer and Dr. King improperly converted general causation literature regarding conductivity and impairment into specific causation findings
See Defs.' Ex. 18 at CADDIS000047.
Plaintiffs point to the EPA's "Stressor Identification Guidance Document," which further explains how to apply the CADDIS method. See Tr. at 188. In its section regarding how to develop a list of candidate causes, the Document states:
See id. Dr. King stated that this was precisely his reasoning regarding the specific causation of impairment at the sites in this case. Id. at 442. Based upon the scientific literature and his experience, he believes that, if the habitat at the sites was perfect, conductivity would still cause impairment and that, if conductivity at the sites were reduced to below 300 μS/cm, over time these streams would come to be unimpaired; thus, conductivity is the principal cause of biological impairment at these sites. See id.
Dr. Palmer also stressed that, though CADDIS is a reasonable approach to a causation problem which is based upon the scientific method, it is not the sole method used by scientists when assessing the specific causation of impairment. Id. at 129-132. To the contrary, CADDIS is most appropriate when evaluating a problem in an unexplored area of research, where the evaluator has no baseline research off of which to work. See id. at 402. In the instant situation, a large amount of preliminary research in this area had already been done, so the baseline pointed to one factor — conductivity — which was likely to trump all of the others. Id. at 402-403. In this way, science builds upon prior science; a scientist need not re-create the wheel during every project. Given their extensive expertise in this area, the Court
Defendants also attempt to discredit Dr. Palmer and Dr. King's expert testimony by labeling them "advocates." First, they note that Dr. Palmer has testified for the Sierra Club a number of times, that she recommended in her 2010 Science paper that no new surface mining permits be granted, and that she appeared on the television show The Colbert Report. Id. at 132. Second, Defendants note that, in 2012, Dr. King submitted a comment to the WVDEP during an open comment period on West Virginia's 2012 303(d) list which expressed concerns with the use of 60.6 as the WVSCI threshold — concerns which were clearly shared by the EPA. Id. at 308-10; see Defs.' Ex. 123. The Court is not persuaded by these attempts at impeachment. Throughout their testimony, Dr. Palmer and Dr. King spoke in terms of scientific literature and findings, and Defendants failed to even minimally rebut the science supporting their testimony. The Court thus credits Dr. Palmer and Dr. King's expert testimony as based upon scientific research, not bias.
Given the large body of evidence presented by Plaintiffs and the lack of any meaningful counter-evidence, the Court
Alex Energy operates the Robinson North Surface Mine and the Wildcat Surface Mine, both in Nicholas County, West Virginia. Stip. ¶¶ 23, 45. Each mine is regulated both by WV/NPDES permits and by West Virginia Surface Mining Permits issued by the WVDEP under the CWA and the SMCRA. Id. ¶¶ 27, 47. The Robinson North Surface Mine has four valley fills that discharge from Outlets 001, 002, and 003 into Robinson Fork. Id. ¶ 26. The Wildcat Surface Mine has a large valley fill which discharges from Outlet 004 into an unnamed tributary of Robinson Fork and from Outlet 007 into Wildcat Hollow, also a tributary of Robinson Fork. Id. ¶ 46.
On May 1, 2013, Mr. Hansen collected water samples 1) directly from Robinson North Surface Mine Outfalls 001 and 003, which empty into Robinson Fork, and 2) from an instream sample site on downstream Robinson Fork ("DSRF"), very close to where Robinson Fork drains into Twentymile Creek and downstream from the outfalls of both the Robinson North Surface Mine and the Wildcat Surface Mine. Tr. at 36-40. While on site, he documented the temperature, conductivity, dissolved oxygen, and pH of the water from which he collected the samples. Tr. at 41; Joint Exs. 7-8.
On September 20, 2012, and on May 1, 2013, Dr. Swan collected biological samples from DSRF and calculated WVSCI scores from those samples. Tr. at 8, 18-19, 43; Joint Exs. 24-27; Pls.' Ex. 18a; Defs.' Ex. 128 at 7. On September 20, 2012, he also collected water samples at that site and documented the temperature, conductivity,
On July 12, 2013, Dr. Menzie visited DSRF and, as explained earlier, three reference sites — Neal Branch, 17332 and Ash Fork — all of which drain into Twentymile Creek at different points. Tr. at 364-66, 371; Joint Ex. 128. Dr. Menzie also gathered data from Twentymile Creek just upstream from the mouth of Robinson Fork. Tr. at 366; Joint Ex. 132. At each of the four key sites, Dr. Menzie took photographs, assessed habitat — including embeddedness, epifaunal substrate, substrate (sedimentation), and canopy cover — using RBP, and gathered temperature, conductivity, total dissolved solids, pH, turbidity, and dissolved oxygen data directly from the stream. Tr. at 364-65, 367, 369, 381; Joint Exs. 123, 132, 135.
The following table compiles the key data collected at DSRF, Twentymile Creek, Neal Branch, 17332, and Ash Fork by each of the three samplers:
Twentymile
DSRF Creek Neal Branch 17332 Ash Fork
WVSCI:
Swan (9/20/12) 52.44 - - - -
Swan (5/1/13) 48.65 - - - -
Conductivity
(μS/cm):
Swan (9/20/12) 2,025 - - - -
Hansen (5/1/13) 1,892 - - - -
Menzie (7/12/13) 1,638 1,227 40 39 29
pH:
Swan (9/20/12) 7.6 - - - -
Hansen (5/1/13) 7.9 - - - -
Menzie (7/12/13) 8.12 7.84 6.98 6.96 6.63
Temperature (°C):
Swan (9/20/12) 18.8 - - - -
Hansen (5/1/13) 19.1 - - - -
Menzie (7/12/13) 23.34 22.05 18.85 20.09 18.53
The following table compiles the key extra data collected on July 12, 2013, by only Dr. Menzie at ULC, DLC, Neal Branch, 17332, and Ash Fork:
Twentymile
DSRF Creek Neal Branch 17332 Ash Fork
Total Dissolved 1.1 0.845 0.029 0.028 0.022
Solids (g/L)
Turbidity (NTU+) -49 -48.8 -38.5 -43.5 -39.4
Embeddedness 41 16 - 18 15 20
(Optimal)42 (Optimal) (Suboptimal) (Optimal)
Epifaunal 11 - 17 16 18
Substrate 43 (Suboptimal) (Optimal) (Optimal) (Optimal)Sediment 13 - 17 12 18Deposition 44 (Suboptimal) (Optimal) (Suboptimal) (Optimal)Total RBP Score 125.5 - 161 147 173 (Suboptimal) (Optimal) (Suboptimal) (Optimal)
In order to prove that Alex Energy has committed at least one violation of its permits, Plaintiffs must demonstrate, by a preponderance of the evidence, that 1) high conductivity in downstream Robinson Fork is causing or materially contributing to a significant adverse impact to the chemical or biological components of the stream's aquatic ecosystems and 2) Alex Energy's Robinson North Surface Mine and/or Wildcat Surface Mine are the cause of — or at least materially contributing to — this high conductivity.
Reviewing the conductivity and WVSCI data collected — by Alex Energy, the WVDEP, Mr. Hansen, Dr. Swan, and Dr. Menzie — from the specific sites nearby the Robinson North Surface Mine and the Wildcat Surface Mine which are at issue in this case, there is a clear pattern over time whereby conductivity increased and WVSCI scores decreased. Conductivity in Robinson Fork was historically very low,
At trial, Defendants attempted to rebut both the general causal relationship between conductivity and low WVSCI scores and the specific causal relationship between those two variables at Robinson Fork by pointing, first, to a prediction made in Dr. King's initial expert report and, second, to several specific measurements over time at Robinson Fork which did not fit this prediction. See Tr. at 284-88. Dr. King's expert report states:
Defs.' Ex. 4 (emphasis added). Thus, the report predicts that conductivity levels primarily ranging from 1000 μS/cm to 2000 μS/cm will likely correspond with WVSCI scores which fall within the range of 50-60.
While cross-examining Dr. King regarding this prediction, Defendants drew attention to a table of Robinson Fork sampling data which was compiled by Plaintiffs' counsel. See Defs.' Ex. 128 at 8-9. Defendants highlighted multiple WVSCI scores above 60 in the table, which, Defendants argued, undermined Dr. King's prediction that conductivity readings of 1000 μS/cm and above would correspond with WVSCI scores which fall within the range of 50-60. See Tr. at 285-90; see also Defs.' Ex. 128 at 8-9 (highlighting all WVSCI scores above 60 in green and yellow).
In another attempt to rebut both the general causal relationship between conductivity and low WVSCI scores and the specific causal relationship between those two variables at Robinson Fork, Defendants drew attention to the fact that, despite consistently high conductivity scores — mostly between 1000 μS/cm and 2000 μS/cm —, some of the WVSCI scores
Dr. King provided sound explanations, consistent with the science on the subject, for variation in WVSCI scores despite consistently high conductivity measurements. First, he noted that almost all of the recent, sporadically-passing WVSCI scores at these seven sites are barely passing scores
Taxonomic changes to the benthic macroinvertebrate community in downstream Robinson Fork reveal that conductivity — and not other potentially confounding factors, such as habitat — is the primary cause of biological impairment. Key taxa in unimpacted Appalachian streams which are known to be sensitive to high conductivity yet not very sensitive to habitat degradation, particularly mayflies — which were historically present at Robinson Fork —, are now almost entirely absent from the creek.
Dr. Menzie again presented the same three potential "confounding factors" which, in his opinion, had not been adequately ruled out by Dr. Palmer and Dr. King before they concluded that conductivity was causing biological impairment at Robinson Fork: temperature, pH, and siltation — particularly embeddedness caused by siltation. Tr. at 354-55, 379-83; see also Joint Exs. 132, 133, 135. Using photographs and videos he took at DSRF, Dr. Menzie testified that, unlike the reference streams, DSRF had an open canopy and all of the rocks were covered in plant growth which was collecting particulate matter that was getting into the stream through haul roads and bare, tree-free areas. Tr. at 371, 375-78; see Joint Exs. 123d, p-q, v-w.
Regarding the temperature and canopy cover observations collected by Dr. Menzie at DSRF, like with that at ULC and DLC, Dr. Palmer and Dr. King both testified that neither is sufficient to cause the level of biological impairment seen at this site. Id. at 238-39, 247-48, 405, 445. Also like with ULC and DLC, Dr. King testified that pH and total dissolved solids cannot be considered "confounding" factors because they are directly linked to conductivity levels, such that an increase in conductivity will result in an increase in both pH and total dissolved solids. See id. at 241-42, 443-44. Dr. Palmer also testified that the pH collected at DSRF is well within the tolerance range of the organisms in the stream. See id. at 405. Just as with ULC and DLC, Dr. Palmer testified that the sedimentation RBP score of 13 given to DSRF by Dr. Menzie could not result in the biological impairment seen at this site. Id. at 409-10; see also Joint Ex. 133. One of the reference streams, 17332, was given the lower sedimentation score of 12 by Dr. Menzie. Joint Ex. 133. Also, the embeddedness score of 16 at Robinson Fork is rated optimal and is higher than the suboptimal score of 15 at 17332. See id.
As with ULC and DLC, while reviewing the same photos of DSRF about which Dr. Menzie testified, Dr. King stated that he did not see any real sedimentation problem in the stream; instead, what he saw was periphyton — normal in streams — and calcium carbonate precipitate caused by high conductivity. See Tr. at 242-43. Dr. Palmer agreed with Dr. King on all of these points, also noting the chalkiness of the water at these sites, which is characteristic of high conductivity, and stating that a certain amount of siltation is entirely normal. See id. at 134, 145-46, 190, 412-16, 418-23. Regarding the overall RBP score gathered by Dr. Menzie for DSRF — 125.5, which fell within the suboptimal category —, Dr. King testified that Appalachian streams commonly fall within the suboptimal category and noted that even one of the reference sites, 17332, received a suboptimal rating. Tr. at 235-36. Dr. King also stated that he has never seen scores in this range resulting in the level of biological impairment seen at this site.
As with ULC and DLC, despite reviewing all of the information gathered by Dr. Menzie, Dr. King and Dr. Palmer both continued to conclude that habitat — including temperature, pH, siltation, and embeddedness — simply was not the cause of biological impairment at these sites. Tr. at 246-47, 255-56, 290, 410, 424, 428-29, 432-33, 436-37, 446. Given their extensive experience in this area, the Court credits Dr. Palmer and Dr. King's expert testimony.
Given the large body of evidence presented by Plaintiffs and the lack of any meaningful counter-evidence, the Court
In multiple ways, the chemical and the biological components of the aquatic ecosystems found in Laurel Creek and Robinson Fork have been significantly adversely affected by Defendants' discharges. The water chemistry of these streams has been dramatically altered, containing levels of ionic salts — measured as conductivity —, which are scientifically proven to be seriously detrimental to aquatic life. The biological characteristics of these streams have also been significantly injured, in that
Losing diversity in aquatic life, as sensitive species are extirpated and only pollution-tolerant species survive, is akin to the canary in a coal mine. These West Virginia streams, like the reference streams used to formulate WVSCI and even like those used by Defendants' expert for comparison in this trial, were once thriving aquatic ecosystems. As key ingredients to West Virginia's once abundant clean water, the upper reaches of West Virginia's complex network of flowing streams provide critical attributes — "functions," in ecological science — that support the downstream water quality relied upon by West Virginians for drinking water, fishing and recreation, and important economic uses. Protecting these uses is the overriding purpose of West Virginia's water quality standards and the goal of the state's permit requirements.
The Court thus
The Court
WVDEP Division of Water and Waste Management, 2010 West Virginia Integrated Water Quality Monitoring and Assessment Report 14 (2010), Joint Ex. 120 at JE 362.
WVDEP's Guidance at 1-2, 7 (emphasis added) (footnotes omitted).
WVDEP 2012 Draft Report at JE 327.
Manchin, 279 S.E.2d at 632.
