Court of Appeals Enforces Conductivity Rules

By John McFerrin

The United States Court of Appeals for the Fourth Circuit decided that a West Virginia coal mine violated the state and federal Clean Water Acts by discharging pollution into nearby streams.

The case, originally filed in March 2013, alleged that mine runoff from a Fola Coal operation in Clay and Nicholas Counties, West Virginia, contaminated water in Stillhouse Branch with sulfate and other ionic pollutants that make those waterways toxic to stream life. The citizen groups that brought this case claimed that the mines were violating “narrative” water quality standards established in the Clean Water Act, which prohibit water pollution that causes harm to stream life or has significant adverse impacts on streams. This suit was brought by the West Virginia Highlands Conservancy, the Sierra Club, and the Ohio Valley Environmental Coalition.

Why this is a big deal—Reason One

One indicator that this decision is a big deal is the crowd that it attracted.  The American Forest And Paper Association; American Petroleum Institute; National Association Of Clean Water Agencies; National Association Of Home Builders; National Association Of Manufacturers; National Mining Association; Utility Water Act Group, and the West Virginia Department Of Environmental Protection all filed as amici curiae.  An amicus curiae is someone who, while not having a direct interest in the outcome of the litigation, has some sort of interest that would be affected and wishes to tell the Court how its interest would be affected.  These entities jumped in to argue on behalf of Fola Coal’s position.  While this is not the crowd that the Clean Power Plan attracted, the presence of these amici is some measure of the issue’s importance.

The United States Environmental Protection Agency also weighed in.  The case began as citizen groups suing a coal company, hoping to enforce the federal and state Clean water Acts.  When it reached the Court of Appeals, the EPA jumped in to argue that the groups were correct.

Why this is a big deal—Reason Two

Beyond the crowd it attracted, this is a big deal because it makes clear that what are called “narrative water quality standards” are to be enforced.  It also makes clear that conductivity is a valid measure of the quality of water and that mining companies must avoid doing things that cause an increase in conductivity to the point that it becomes harmful.

This is the first time that a court on this level has made such a ruling.  The West Virginia Highlands Conservancy, the Sierra Club, and the Ohio Valley Environmental Coalition have been involved in settlements that recognized that these things are true but this is the first time that the Court of Appeals has actually made a decision saying that they are true.

How the Clean Water Act Works

The original goal (and one still contained in the Act) of the Clean Water Act was the eventual elimination of polluting discharges to the waters of the United States.  While this goal remains in the Act, as things have developed over the past thirty years the system has evolved into one of permitting.  Companies get permits which allow them to discharge small amounts of pollution.  Those permits are supposed to allow only enough pollution that, even after it is added, the stream will still be fishable, swimmable, etc.

The small amounts of pollution that companies were allowed by their permits to discharge are called effluent limits.  A typical permit will allow a company to allow up to X amount of iron, Y amount of aluminum, etc. in the water leaving the permitted area.  Years ago these were the only limits that companies had to take seriously.

Only in the recent past (and urged on by litigation by citizens, including the West Virginia Highlands Conservancy) have regulators done much beyond measuring and limiting polluting discharges into streams.  This movement beyond the older, and less effective, way of doing things came from the additional attention that regulators (and those who urge them on) began to pay to what are called narrative water quality standards. 

Narrative water quality standards are not specific numerical limits as the effluent limits are.  Instead, they are descriptions of conditions that are not allowed in state waters.  They are such things as smells, colors, sludge deposits, or (as is relevant in this case) any other condition which adversely alters the integrity of the waters of the State or results in a biological impairment.

What happened here

In this case, Fola had met its numerical effluent limits.  Had regulation stopped there and ignored the narrative standards, it would have been home free.  But it did not.  The Court agreed with the groups who had brought the suit that Fola must also meet the narrative standard.

Fola did not meet the narrative standards because it was causing increased conductivity in the stream.  Increased conductivity results in biological impairment of the stream. (See box)  The evidence was that the conductivity was ten times as high as the level at which biological impairment occurs.

End run by West Virginia Legislature blocked

The West Virginia Legislature had previously tried to provide some relief to coal companies in Fola Coal’s situation.  It had passed a statute which said that any company which met the effluent limits did not have to meet the narrative water quality standards.  Fola Coal sought protection from this statute.

The Court did not buy this argument.  Under the federal Clean Water Act, the United States Environmental Protection Agency must approve any change to state law, particularly ones that would weaken the state’s law.  The EPA never approved this change because it would weaken West Virginia’s law and cause it to conflict with federal law.  As a result, the company could not use that statute as a defense.

What happens next

            Figuring out what steps Fola has to take to correct the problem is a technical matter.  The District Court, which first considered the case, rejected the plaintiffs’ proposed solution and appointed a Special Master of Engineering to monitor Fola’s method to clean up the water pollution, a method that would be less burdensome than the method the plaintiffs proposed.

What is conductivity

Conductivity is a measure of the ability of water to pass an electrical current.  Totally pure water is a poor conductor of electricity.  Generally speaking, the more inorganic dissolved solids such as chloride, nitrate, sulfate, and phosphate anions (ions that carry a negative charge) or sodium, magnesium, calcium, iron, and aluminum cations (ions that carry a positive charge) that are present in the water, the more easily the water can conduct electric current.  Thus, if we measure the conductivity and it is high, it tells us that there are a lot of these and other substances dissolved in the water.  While it does not identify individual substances, the conductivity reading gives an overall reading of the concentrations of substances in the water.

Conductivity is useful as a general measure of stream water quality. Each stream tends to have a relatively constant range of conductivity that, once established, can be used as a baseline for comparison with regular conductivity measurements. Significant changes  in conductivity could then be an indicator that a discharge or some other source of pollution has entered a stream.

Research has shown that high conductivity can make a stream inhospitable to aquatic life, making the stream biologically impaired.