Forever Fola

By Cindy Rank

As reported in previous issues of the Voice, mining operations on the mountain ridges along the Clay/Nicholas County line continue to pollute streams that flow into both the Gauley River to the south and the Elk River to the north.

Many of these articles have focused on mines operated by Fola Coal Company. And those mining operations continue to come under scrutiny in Federal Court as a result of citizens suits filed on behalf of West Virginia Highlands Conservancy, Ohio Valley Environmental Coalition, West Virginia Rivers Coalition, and Sierra Club.

The U.S. Environmental Protection Agency (EPA) has estimated that nine out of ten 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, and we continue to pursue litigation over violations at several of the company’s mining operations in the Clay/Nicholas County area.

These legal procedures require voluminous filings by plaintiffs and defendants alike, and often one or more actual court hearings or trials with expert witnesses testifying for each side – a process that often takes a year or two or more – hence, the many Voice articles that may at times seem repetitive.

A couple of notable actions involving Fola took place too late to be included in the June issue of the Highlands Voice, but deserve some mention here.

1) Fola Monoc #2 Surface Mine.

Beginning with a Notice of Intent (to sue) in 2014, then filing a complaint on February 2, 2015, plaintiffs alleged that Fola Monoc #2 mine was polluting receiving streams Shanty Branch and Elick Hollow of Leatherwood Creek in Clay County.

Responding to a challenge by defendant Fola Coal, the court affirmed on February 27, 2017 and memorialized in a Memorandum Opinion and Oder dated April 4, 2017 the validity of our standing as plaintiffs.

A trial/court hearing on the liability phase of the litigation was held March 13 & 14, 2017 to determine if Fola Coal should be held responsible for pollution of the tributaries of Leatherwood Creek below the two valley fills at the Monoc #2 mine.

A court opinion issued May 26, 2017 held that yes, Fola Coal was responsible for ionic pollution (measured by conductivity) that “caused or materially contributed to the significant adverse impact to chemical and biological components of stream aquatic ecosystems of the applicable streams in violation of narrative Water Quality Standards incorporated in the permit.”

U.S. District Judge Robert C. Chambers found that while “at one time both streams were thriving ecosystems, teeming with life that supported important functions for West Virginians and terrestrial and aquatic organisms, alike …” “The chemical and biological components of Shanty Branch and Elick Hollow have been dramatically affected by Fola’s discharges into each stream.”

Downstream users rely on West Virginia’s complex network of flowing streams for clean drinking water, fishing, recreation, and other important economic uses like tourism. These streams also serve cultural and spiritual purposes for West Virginians living near to and downstream from these once pristine rivulets. Protecting these uses is the overriding purpose of West Virginia’s water quality standards and the goal of the state’s permit requirements.”

Of special note in the May court opinion is the fact that this is the first court decision that uses West Virginia’s more accurate and peer-reviewed method of measuring biological impairment in streams.

By way of background, in 2000 WVDEP, in partnership with private consulting firm Tetra Tech, developed a family-level identification of stream life known as the West Virginia Stream Condition Index (WVSCI) and began using it to determine stream impairment for purposes of compliance with the CWA in 2002.

Always looking to build that better mousetrap WVDEP and EPA jointly developed another methodology known as GLIMPSS (Genus Level Index of Most Probable Stream Status) in 2010. It uses genus-level identifications of macroinvertebrates (insects, bugs, generally) collected at streams to calculate a score that corresponds to the health of the stream.

Both WVSCI and GLIMPSS are valid and accepted methodologies to test for impairment. However, expert testimony and peer-reviewed studies have shown that GLIMPSS is a more accurate measure of impairment. Unfortunately while on the one hand WVDEP promotes the use of GLIMPSS in its Benthic Macroinvertebrate Collection Protocols, stressing that WVSCI should only be used for data that does not include genus level identifications, the agency has refused to apply that stream assessment method to mine pollution, forcing citizens to bring court actions like this one to enforce the law.

Citing expert testimony and exhibits submitted as part of the written record, the May 26th court opinion emphasizes the importance of GLIMPSS in evaluating the headwater streams impacted by valley fills.

“Since publication of WVSCI in 2000, however, available biological data and science have progressed significantly. Assessment of the health of bodies of water has progressed from family-level to genus-level identification to more accurately represent the composition of the aquatic community and increased [the] ability to detect a variety of impacts. Regarding genus-level indices compared to their family-level predecessors in southern West Virginia waters affected by mining, genus-level metrics have been found to detect impacts more effectively than WVSCI. This is in part because a site may lose several genera before an entire family was extirpated and therefore became visible to a family level index. For example, in a recent study, sample identification at the genus level taxonomy demonstrated loss of entire functional feeding groups. Loss of an entire functional feeding group (at the genus level) indicates ecosystem imbalance . … By not evaluating this genus-level data, EPA has explained, important information related to impairment may be missed.”

The next step in this litigation is the remedy phase and will include another trial to discuss, debate and determine what measures Fola will be required to implement to correct the violations and stop the discharges of toxic ionic pollution.

2) Fola 4A and Bullpen.

On May 24, 2017 the same plaintiffs (West Virginia Highlands Conservancy, Ohio Valley Environmental Coalition, West Virginia Rivers Coalition, and Sierra Club), once again represented by attorneys with Appalachian Mountain Advocates and Public Justice, filed a complaint alleging two other Fola mines are in violation of their permits because of toxic ionic pollution.

Whereas the Monoc #2 mine discharges discussed above flow into the left fork or main stem of Leatherwood Creek, the Fola 4A and Bullpen mines at issue in this latest complaint are part of a complex of mines located on the Right Fork of Leatherwood Creek.

Fola 4A and Bullpen were also included in litigation filed in 2015 alleging toxic discharges from several Fola mines in the Leatherwood area. An opinion favorable to the plaintiffs in that case was limited to the other Fola mine discharges, but the location of sampling points downstream of the Fola 4A and Bullpen mines left doubt in the Court’s mind as to the specific causal nature of the mine discharges in question.

On March 1, 2017 based on expanded and updated information, we sent a Notice of Intent to file suit to the company, to the U.S. Environmental Protection Agency, the Office of Surface Mining Reclamation and Enforcement, and to the WV DEP.

After the requisite 60 days of waiting (but to no avail) for substantive action by the company or any of the agencies mentioned, to correct the violations, diligently pursue administrative, criminal or civil actions, a complaint was filed May 24, 2017.

More on this and other mining and water related litigation and court proceedings in future issues of the Voice. ….. Stay tuned.




* POSTSCRIPT:  Until August 2016 Fola Coal Company was owned by Consol Energy Inc. Apparently Fola has been, or is being, taken over by James Booth’s Kentucky based Southeastern Land, LLC, though according to the WV DEP website, permit transfers have not yet been granted.

It’s understandable why Consol wants to rid itself of the liabilities incurred at the Fola surface mines; in fact rumor has it that Consol paid Southeastern tens of millions of dollars to take Fola. But it’s difficult to understand why James Booth wants to, or is willing to, pick up those liabilities.

WVDEP approval of permit transfers from Fola/Consol will depend largely on Southeastern’s ability to guarantee sufficient bonding/monies to assure complete reclamation and water treatment.

Bottom line, Southeastern may have bought a pig in a poke.