Judge to Appoint Special Master to Speed Up Coal Mine Cleanups

By Ken Ward Jr.

A federal judge says he plans to appoint a “special master” in an effort to speed up the process of cleaning up water pollution violations related to a Fola Coal mountaintop removal operation along the Clay-Nicholas County line.

U.S. District Judge Robert Chambers issued a ruling Wednesday afternoon that said he was planning to appoint James Kyles of the firm AECOM Technical Services to assist the court, citing the “complexity of the matters in this case” and saying that the move would help him to find a “suitable remedy.”

Attorneys for the Ohio Valley Environmental Coalition, the West Virginia Highlands Conservancy, the West Virginia Rivers Coalition, and the Sierra Club had asked Chambers to appoint the special master. The groups are represented in the case by lawyers from Appalachian Mountain Advocates.

Chambers is mulling his options for what he should order Fola Coal to do following a ruling he made in May that pollution from a Fola operation had impaired aquatic life in Shanty Branch and Elick Hollow to the point that the streams violate key state and federal water quality protections. Courts are permitted under federal rules to appoint knowledgeable special masters to assist them with especially time-consuming or complicated matters.

The May ruling was the latest in a series of decisions Chambers has made in citizen suits that focused on electrical conductivity, which scientists say is a key indicator of stream health and the presence of other pollutants, such as chlorides, sulfides and dissolved solids. Research has linked these pollutants increasingly to coal-mining activities, and found that high levels of conductivity are associated with damage to aquatic life.

Chambers ruled that environmental groups had proven that Fola had violated its water pollution permits by discharging into Shanty Branch and Elick Hollow high levels of toxic pollution, as measured by conductivity, which have caused or materially contributed to “a significant adverse impact to the chemical and biological components of the streams’ aquatic ecosystem, in violation of the narrative water quality standards incorporated into those permits.” But, the judge ruled only on whether those violations had occurred and said he would set a schedule for proceedings to determine what relief the court would order.

In Wednesday’s order, Chambers noted that the coal company opposed appointment of a special master and instead proposed a year-long period of additional stream monitoring and collecting of data, with a second trial to be held in March 2019 to decide on a remedy for the pollution.

Chambers, though, noted that he already had appointed the same special master in two other conductivity pollution cases involving Fola mines in the same area, and that even with that assistance, the cases continue to drag on without any specific pollution remedy. The judge said he waited too long in those other cases to appoint a special master.

In one case, the judge noted, he waited 10 months between finding the company liable for violations of permits and appointing Kyles as a special master. During that period, the parties conducted additional discovery and deposed more experts. The court held a second, two-day trial with “countless exhibits and extensive testimony.”

“Despite all of that time and effort, the record lacked sufficient information to determine an appropriate specific remedy,” the judge wrote.

In a second case, the judge said he waited 11 months between the liability finding and the appointment of Kyles. Again, the parties conducted more discovery and deposed more experts, and the court held a second trial. Again, the parties recognized the need to appoint a special master, the judge said.

Chambers said his experience with those cases “demonstrates to this court that a special master should be appointed at an earlier stage in the proceedings.”

“Furthermore, a prompt determination of a remedy is important given the continuing impact that the pollution has on the ecosystem of the affected waters,” the judge wrote. “The longer the remedial process takes, the longer the ecosystems of these Appalachian streams are adversely impacted.”


Note:  This article originally appeared in The Charleston Gazette.