Ohio Valley Environmental Coalition et al v. Fola Coal Company, LLC

Filing 123

MEMORANDUM OPINION AND ORDER finding that Plaintiffs have established, by a preponderance of the evidence, that Defendant has committed at least one violation of its permits by discharging into Stillhouse Branch high levels of ionic pollution, whi ch have caused or materially contributed to a significant adverse impact to the chemical and biological components of the stream's aquatic ecosystem, in violation of the narrative water quality standards incorporated into those permits. Signed by Judge Robert C. Chambers on 1/27/2015. (cc: attys; any unrepresented parties) (taq)

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION

OHIO VALLEY ENVIRONMENTAL
COALITION, INC., WEST VIRGINIA
HIGHLANDS CONSERVANCY, INC.,
and SIERRA CLUB,
Plaintiffs,
v.

CIVIL ACTION NO. 2:13-5006

FOLA COAL COMPANY, LLC,
Defendant.
MEMORANDUM OPINION AND ORDER
On August 19–22, 2014, the Court held a trial in this case on liability issues, 1 and the
parties timely conducted post-trial briefing. As explained below, the Court FINDS that Plaintiffs
have established, by a preponderance of the evidence, that Defendant has committed at least one
violation of its permits by discharging high levels of ionic pollution, as measured by conductivity,
into Stillhouse Branch, which have caused or materially contributed to a significant adverse
impact to the chemical and biological components of the applicable stream’s aquatic ecosystem, in
violation of the narrative water quality standards that are incorporated into those permits.

I.

BACKGROUND

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

1

Pursuant to this Court’s June 21, 2013, Scheduling Order, ECF No. 16, this case is
proceeding in two phases: Phase I will resolve issues of jurisdiction and liability, and Phase II, if
necessary, will resolve issues of appropriate injunctive relief and civil penalties.

Reclamation Act (“SMCRA”).

Plaintiffs allege that Defendant Fola Coal Company, LLC

(“Fola”) 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 permit for the discharge of any pollutant, provided that the discharge complies with the
conditions of the CWA. 33 U.S.C. § 1342. A state may receive approval to administer a state-run
NPDES program under the authority of 33 U.S.C. § 1342(b). West Virginia received such
approval, and its NPDES program is administered through the West Virginia Department of
Environmental Protection (“WVDEP”). 47 Fed. Reg. 22363-01 (May 24, 1982). All West
Virginia NPDES permits incorporate by reference West Virginia Code of State Rules §
47-30-5.1.f, which states that “discharges covered by a WV/NPDES permit are to be of such
quality so as not to cause violation of applicable water quality standards promulgated by [West
Virginia Code of State Rules § 47-2].” This is an enforceable permit condition. Ohio Valley
Envtl. Coal. V. Elk Run Coal Co., Inc., 24 F.Supp.3d 532, 537 (S.D. W.Va. 2014) (“Elk Run”).
Coal mines are also subject to regulation under the SMCRA, which prohibits any person

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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.
This Court has previously determined that a West Virginia Stream Condition Index

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(“WVSCI”) score below the EPA-approved 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. Elk Run, 24 F.Supp.3d at 556. In Elk Run, Defendants argued that liability based on
conductivity levels would effectively create a water qualify effluent limit, which according to a
federal district court in Nat’l Mining Ass’n v. Jackson, 880 F.Supp.2d 119, 137–42 (D.D.C. 2012),
exceeded EPA authority. Though already recognized as inapposite to the issues presented in Elk
Run—as well as the case at hand—the Court now also notes that Jackson has since been reversed.
Nat’l Mining Ass’n v. McCarthy, 758 F.3d 243 (D.C.Cir. 2014) (concluding that EPA’s Final
Guidance amounted to a general statement of policy explaining how the agency would enforce
existing rules and was not a final agency action subject to pre-enforcement judicial review).
This Court has also previously determined Plaintiffs’ substantive burden in the case at hand
upon Defendant’s oral motion for a judgment on partial findings at the close of Plaintiff’s
evidence. See Memorandum Opinion and Order, ECF No. 114. After reviewing all the evidence
then before the Court and legal arguments briefed by the parties, the Court denied Fola’s motion,
finding instead that Plaintiffs had provided some evidence that a pollutant had caused or materially
contributed to biological impairment at Stillhouse Branch in violation of Fola’s permits. Id.
Specifically, the Court determined that Plaintiffs’ burden is to show that the high conductivity
measured at Stillhouse Branch is composed of some mixture of ions that is known to cause or
materially contribute to impairment. Id. at 7. Upon reviewing Plaintiffs’ evidence, the Court then
concluded that Plaintiff had produced some evidence that high conductivity in central Appalachian
waterways receiving alkaline mine drainage, e.g., Stillhouse Branch, is dominated by a unique
mixture of ions and that particular variety of ionic pollution is known to cause or materially

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contribute to biological impairment. Id. at 21.

While the Court previously reviewed the

sufficiency of the evidence in terms of surviving a motion for judgment on partial findings, now
the Court considers whether Plaintiffs have met their ultimate persuasive burden of showing that
one or more violations occurred by a preponderance of the evidence.
II.

LIABILITY

A. Legal Issues
Fola opens its post-trial briefing with a reiteration of arguments already defeated: permit
shield defense and appropriateness of relying on WVSCI scores to determine violations of the
narrative water quality standard. After briefly revisiting these settled questions of law, the Court
will then address Fola’s novel legal arguments relating to general and specific causation.
1. Permit Shield
In Defendant’s 2009 application for renewal of its NPDES permit, Defendant submitted
conductivity and sulfate measurements similar to the measurements relied upon in this case. 2
Despite reviewing these similar conductivity and sulfate levels, as articulated by Defendant,
WVDEP “elected not to limit the concentration of conductivity or sulfate that Fola may discharge
from any of the outlets covered by the permit, including Outlet 029.” Def.’s Post-Trial Brief at 2,
ECF No. 120. On that basis, Defendant alludes to the already settled argument that it may rely on
the CWA “permit shield” defense. Id. at 2–3.
In an effort to defend WVDEP’s permitting approach, Defendant directs the Court’s
attention to a recent West Virginia Supreme Court case, Sierra Club v. Patriot Mining, Inc., No.

2

Conductivity levels ranged from 3,000–4,000 µS/cm; and sulfate levels ranged from 1,000
– 2,000 mg/l. Motion for Summary Judgment, Ex. 5 at 23, 24, 31, and 33, ECF No. 57-8.
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13-0256, 2014 WL 2404299 (May 30, 2014) (unpublished) (“Patriot”). 3 In Patriot, Patriot
Mining obtained a modification to an existing NPDES permit enabling expansion of surface
mining activities at New Hill West Surface Mine in Monongalia County, West Virginia. Id. at *1.
The modified permit included maximum daily discharge limitations for select materials, but only
reporting requirements for others, including sulfate, specific conductance, and total dissolved
solids (“TDS”). Id. Upon review, the Environmental Quality Board (“EQB”) remanded the
permit modification after finding that Petitioner demonstrated that levels of sulfate, conductivity,
and TDS in the watershed were already “above limits known to cause harm to aquatic life, thereby
violating West Virginia’s narrative water quality standards.” Id. at *2. On appeal, however, both
the circuit court and the West Virginia Supreme Court of Appeals reached a contrary conclusion,
upholding WVDEP’s permitting decision. Id. at *2–3, *6. The West Virginia Supreme Court
particularly explained that it was “not persuaded by the evidence of record that there is adequate
agreement in the scientific community to trigger the WVDEP to conduct a reasonable potential
analysis regarding sulfate, conductivity, or TDS under these circumstances.” Id. at *5.
Despite the intervening issuance of the Patriot Mining decision, as Defendant’s permit
shield argument has failed in the past, so it fails again. Even without becoming mired in
considering the appropriate precedential effect a federal district court might afford an unpublished
memorandum opinion from a state court that would not itself cite to the opinion, Defendant’s
argument continues to fail for at least for two reasons. First, the opinion does not reveal the scope
3

In Pugh v. Worker’s Comp. Comm’r, 424 S.E.2d 759 (W.Va. 1992), the West Virginia
Supreme Court unequivocally explained that “unpublished opinions of [that] Court are of no
precedential value and for this reason may not be cited in any court of this state as precedent or
authority, except to support a claim of res judicata, collateral estoppel, or law of the case.” Thus,
it is safe to assume that were similar arguments instead before the West Virginia Supreme Court of
Appeals, that court would not itself cite to its decision in Patriot, 2014 WL 2404299.
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of the record that was before the West Virginia Supreme Court of Appeals, though it is clear that
the court heard no oral argument in the matter. Patriot, 2014 WL 2404299, at *1. Without a
review or comprehensive summary of the record supporting that court’s decision, this Court
simply cannot determine the relative adequacy of the factual record there. As will be reviewed
below, this Court’s decision is informed by a considerable volume of agency findings, expert
testimony, and numerous published, peer-reviewed journal articles, all offered over several days of
testimony.
Second, and quite simply, permit holders are obliged under the law to comply with numeric
and narrative water quality standards. Elk Run, 24 F.Supp.3d at 537. WVDEP’s forward-looking
assumptions about whether or not there is sufficient evidence to support a numeric effluent limit or
trigger a reasonable potential analysis cannot be used to shield an operator from liability for
discharges that later defy those assumptions and are ultimately discovered to cause or materially
contribute to impairment. State court judgments regarding what forward-looking assumptions
WVDEP should be making in lawfully executing its permitting duties simply do not help this
Court to answer the question of whether or not Defendant has violated enforceable permit
conditions.
2. Determining violations of narrative water quality standard
Defendant also restates previously unsuccessful arguments that (1) violations of the
narrative water quality standard cannot be determined based solely on WVSCI scores and (2) the
in-stream water quality standard is not an enforceable effluent limit. Def.’s Post-Trial Brief, ECF
No. 120 at 3. As thoroughly examined and settled in Elk Run, notwithstanding WVDEP’s
contrary guidance, violations of narrative water quality standards must be determined based on a

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reasoned and meaningful methodology. Elk Run, 24 F.Supp.3d at 548–50. In the absence of
advancing a meaningful methodological alternative to supplant WVDEP’s previous reliance on
WVSCI to determine in-stream impairment, this Court will continue to follow WVDEP’s
prescribed WVSCI methodology for determining compliance with biological narrative water
quality standards. Id. at 554–56. 4
3. Weight afforded to Ms. Carrie Kuehn’s criticisms of EPA’s Benchmark
In March 2011, EPA released “A Field-Based Aquatic Life Benchmark for Conductivity in
Central Appalachian Streams” (“EPA’s Benchmark” or “Benchmark”). Joint Ex. 58.
Benchmark

is

the

product

of

four

authors,

eight

contributors,

and

The

twenty-five

reviewers—including Defendant’s expert Dr. Charles Menzie—sixteen of whom were members
of the Science Advisory Board (“SAB”). 5 EPA's Benchmark at ix-xii, Joint Ex. 58. In short, the
EPA’s Benchmark is the studied product of “an eminent list of reviewers and authors.” Tr. at 63.
As it was relied upon in Elk Run, 24 F.Supp.3d at 556, Plaintiffs here rely upon EPA’s Benchmark
as a scientific study, among others, which supports Plaintiffs’ general causation argument that high
conductivity levels in streams impacted by alkaline mine drainage lead to the extirpation of some

4

This continued reliance on WVSCI scores appropriate for judicial review is also the
approach still prescribed by the EPA. In response to WVDEP’s final submission of its 2012
Section 303(d) list, the EPA explained that “[f]or the reasons discussed in the enclosures, EPA
partially approves and partially disapproves West Virginia’s Section 2012 303(d) list consistent
with the requirements of CWA Section 303(d) and 40 CFR 130.7. The basis of EPA’s partial
disapproval is WVDEP’s decision not to evaluate existing and readily available data regarding
whether certain waters are achieving West Virginia’s narrative water quality criteria (W.Va. CSR
§ 47-2-3.2(e) & (i)) as applied to the aquatic life uses.” Pl. Ex. 20 at PE302, Tr. at 57. In the
Enclosures accompanying EPA’s partial disapproval, EPA specifically added that “West
Virginia’s use of the “gray zone” is statistically unsupported.” Id. at PE 319, Tr. at 58.
5
The SAB Panel on Ecological Impacts of Mountaintop Mining and Valley Fills included
fifteen reviewers, almost all of whom hold doctoral degrees and are faculty members at
universities. Pl. Ex. 25 at PE374–75; Tr. at 62–63.
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types of benthic macroinvertebrates. Pls.’ Post-Trial Brief at 7–8, ECF No. 117. While Plaintiffs’
reliance on the EPA’s Benchmark is relatively unchanged, Defendant newly advances arguments
that EPA’s Benchmark suffers from fundamental analytical errors and should not be afforded
determinative weight.
Defendant’s argument discouraging reliance on EPA’s Benchmark begins with note that
the document marks EPA’s “maiden voyage into the field of epidemiology.” Def.’s Post-Trial
Brief, ECF No. 120 at 1. Notwithstanding the agreed fact that EPA’s Benchmark was reviewed
by a panel of experts on the SAB, Defendant represents that the first qualified epidemiological
reviewer of EPA’s Benchmark is Fola’s own expert, Carrie Kuehn. Id. at 5. Accordingly,
Defendant urges that Ms. Kuehn’s evaluation of EPA’s Benchmark should be afforded great
weight. Id. To determine the appropriate weight her opinions are due, the Court will review Ms.
Kuehn’s qualifications and credibility as a witness and then summarize and consider her critiques
of EPA’s Benchmark. Before doing so, however, it is appropriate to first outline how the Court
must approach scientific determinations made by agencies.
“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

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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

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decision stand.” Crutchfield, 325 F.3d at 218 (brackets omitted) (internal quotation marks
omitted).
In light of these precedents, and as previously analyzed by this Court in Elk Run, EPA’s
Benchmark must be afforded deference by this Court. 24 F.Supp.3d at 558–59. The EPA’s
Benchmark methodically defines its inquiry, explains its reasonable analysis, and supports its
ultimate, rational conclusions.

Additionally, the Benchmark underwent extensive scientific

review, and it is respected as good—or even excellent—science within the relevant scientific
community. Tr. at 75. It is against this background of deference to scientific determinations made
by an expert agency that Defendant advances Ms. Carrie Kuehn’s criticisms of EPA’s Benchmark.
For the past six years, Ms. Kuehn has been employed in Exponent’s Biomedical
Engineering practice as a Senior Managing Scientist. Joint Ex. 67; Tr. at 394. In that role, she is
responsible for consulting with clients, supervising reports, and helping to manage the practice. Tr.
at 394–395. In recent years, Ms. Kuehn’s responsibilities have included extensive work in
medical device regulatory affairs. Tr. at 478. Ms. Kuehn identifies as a trained epidemiologist,
having earned both a Master of Arts in Biocultural Anthropology and a Master of Public Health in
Epidemiology from the University of Washington, Seattle. Joint Ex. 67; Tr. at 396–97. She holds
no training in the study of ecology. Tr. at 482. Prior to being retained for purposes of this
litigation, and unlike the other experts on record, Ms. Kuehn had never analyzed the type of
ecological data that underlies the EPA’s Benchmark. Tr. at 482–484.
Despite Ms. Kuehn’s lack of training in the underlying subject matter—ecological data and
systems—she nonetheless offered several critiques of the methodology and conclusions reached
by the EPA. In light of Ms. Kuehn’s repeated references to the importance of a priori knowledge

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in causation analysis, 6 the Court is left unsure how Ms. Kuehn remains confident in her analysis
when she is without precisely that necessary knowledge-base. This is particularly curious given
the extensive individual and collective experience of not only the authors of EPA’s Benchmark,
but also SAB reviewers and peer-reviewers on journals that accepted related articles for
publication 7—not to mention the individual and collective experience of researchers that have
published corroborating articles. 8 And with respect to that latter collection of ecological experts,
Ms. Kuehn was similarly willing to offer criticism outside her subject-area expertise and therefore

6

As explained by Ms. Kuehn, a priori knowledge “refers to our previous knowledge,
knowledge we have that we bring to the analysis, knowledge that we are familiar with prior to
conducting the study that we’re doing.” Tr. at 528. Ms. Kuehn further agreed that a priori
knowledge was certainly important in ecological data analysis. Id.
7
See Susan M. Cormier, Glenn W. Suter II & Lei Zheng, Derivation of a Benchmark for
Freshwater Ionic Strength, 32 Envtl. Toxicology & Chemistry 263 (2013), Pls.' Ex. 3; Susan M.
Cormier & Glenn W. Suter II, A Method for Assessing Causation of Field Exposure–Response
Relationships, 32 Envtl. Toxicology & Chemistry 272 (2013), Pls.' Ex. 4; Susan M. Cormier et al.,
Assessing Causation of the Extirpation of Stream Macroinvertebrates by a Mixture of Ions, 32
Envtl. Toxicology & Chemistry 277 (2013), Pls.' Ex. 5; Glenn W. Suter II & Susan M. Cormier, A
Method for Assessing the Potential for Confounding Applied to Ionic Strength in Central
Appalachian Streams, 32 Envtl. Toxicology & Chemistry 288 (2013), Pls.' Ex. 6.
8
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) (“2008 Pond”), Pls.' Ex. 15, Tr. at 39–41; Gregory J.
Pond. Patterns of Ephemeroptera taxa loss in Appalachian headwater streams (Kentucky, USA),
641(1) Hydrobiologia 185 (2010), Pl. Ex. 16, Tr. at 44–46; Gregory J. Pond, Biodiversity Loss in
Appalachian Headwater Streams (Kentucky, USA): Plecoptera and Trichoptera Communities,
679 Hydrobiologia 1, 97 (Jan. 2012), Pls.' Ex. 17; M.A. Palmer et al., Mountaintop Mining
Consequences, 327 Sci. 148 (2010), Pl. Ex. 13, Tr. at 37–39; Eric Merriam et al., Additive Effects
of Mining and Residential Development on Stream Conditions in a central Appalachian
Watershed, 30(2) J. N. Am. Benthological Soc. 399 (2011), Pl. Ex. 12, Tr. at 207; Bernhardt et al,
How Many Mountains Can We Mine?: Assessing the Regional Degradation of Central
Appalachian Rivers by Surface Coal Mining, 46(15) Environmental Science and Technology 8115
(July 2012) (“How Many Mountains”), Pl. Ex. 2; Pond et al., Long-Term Impacts on
Macroinvertebrates Downstream of Reclaimed Mountaintop Mining Valley Fills in Central
Appalachia, 54(4) Envtl. Mgmt. 919 (October 2014), Pl. Ex. 19, Tr. at 49–51.
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without the benefit of a priori knowledge. 9 Yet, unlike all the other testify experts—and indeed
perhaps as a function of her lack of a priori knowledge—it is not clear to the Court that Ms. Kuehn
correctly understood the Benchmark when she conducted her review. 10
For these reasons alone, Ms. Kuehn has neither the requisite qualifications nor the related
credibility to unsettle this Court’s previous and continuing conclusion that the scientific
determinations made by the EPA in its Benchmark are owed deference by this Court. Elk Run, 24
F.Supp.3d at 558–59. The Court will thus properly defer to the EPA's determination that (1)
mountaintop mining with valley fills is a substantial—if not the primary—source of conductivity
in adjacent streams and (2) high conductivity in streams causes significant biological impairment
to—including the localized extinction of—aquatic macroinvertebrates.
Even without such deference, the Court is not persuaded by Ms. Kuehn’s criticisms of
EPA’s Benchmark. Substantively, Ms. Kuehn criticizes the EPA’s Benchmark insofar as she
claims that (1) EPA never adequately addressed concerns raised by SAB and (2) EPA’s analysis of
confounding factors was flawed. With respect to the first criticism, the reviewing SAB panel
9

As she did with EPA’s Benchmark, Ms. Kuehn noted fundamental errors in a paper
recently published by Dr. Gregory Pond, Tr. at 475–76, motivating her surprise that it was
accepted for publication at all, much less in a prestigious journal—one which she was evidently
unfamiliar with but for purposes of her testimony. Tr. at 476–477.
10
According to Ms. Kuehn’s testimony at trial, she reviewed the EPA’s Benchmark with the
understanding that it was developed because the EPA was “examining the effect of conductivity
on stream impairment as measured by the WVSCI and whatnot.” Tr. at 518. In fact, and as
recognized by all of the other testifying expert witnesses, the EPA’s Benchmark identified genera
of benthic macroinvertebrates extirpated by conductivity in Central Appalachian streams, with
“nothing to do with informing us about GLIMPSS or WVSCI in terms of the benchmark value.”
Testimony of Dr. Menzie, Tr. at 656–657; see also Testimony of Dr. Palmer, Tr. at 61 (“The
benchmark is describing work [EPA] did to establish a relationship between extirpation of
organisms and conductivity”); and Testimony of Dr. King, Tr. at 240 (“[T]he Benchmark really is
entirely based on the species sensitivity, and then they had some additional analysis where they
looked at WVSCI, but it was not a huge component of their work”).
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indeed performed its basic function and offered constructive criticism of EPA’s Benchmark. As
noted by Defendant, such constructive criticism included the recommendation that, in addressing
confounding factors, the EPA should:
Consider further use of quantitative statistical analyses for understanding causality
and the potential role of confounding factors. Because parametric procedures have
been used successfully elsewhere to evaluate multivariate environmental data sets
and can provide a relatively objective, quantitative framework for data analysis, a
more rigorous statistical analysis should be contained in the document. Further, it
would be helpful for the authors to clarify whether nonparametric multivariate
methods, such as non-metric multidimensional scaling, were considered. At a
minimum, the EPA document should discuss the pros and cons of multivariate
statistical methods (such as multiple linear regressions, principal components
analysis and canonical correlations, factor analyses, and partial correlations) and
explain why these approaches were not applied.
Pls.’ Ex. 25 at PE402. According to Ms. Kuehn, EPA failed to adequately address the Panel’s
concerns, first by not integrating multivariate statistical analysis into their weight of evidence
technique, and second by improperly analyzing count data using linear regression. Tr. at 425–26.
It is also worth noting, however, that the Panel’s recommendation on how EPA might strengthen
its confounding factor analysis is within a section that begins by applauding the EPA’s
confounding factor analysis:
The Panel commends the authors for carefully considering factors that may
confound the relationship between conductivity and extirpation of invertebrate
genera. This was accomplished by: (1) removing some potentially confounding
factors from the data set before determining the benchmark concentrations; and (2)
considering weight-of-evidence of a suite of other potentially confounding factors
that were not excluded from the data set—using correlations between potential
confounding factors, conductivity, and aquatic genera (mayflies). The report has
done a credible job in isolating the major, potential confounding factors and
providing a basis for their assessment relative to the potential effect associated with
conductivity.
Pls.’ Ex. 25 at PE401. In the very least, these commending remarks by the SAB Panel reflect that

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while the Benchmark—like virtually any scientific enterprise 11—does not exhaust all analytical or
methodological avenues, it nonetheless passed muster with the SAB Panel.
In addition to publication of EPA’s Benchmark, the lead authors submitted components of
the Benchmark as individual papers to the journal Environmental Toxicology and Chemistry, the
“flagship journal of the Society of Environmental Toxicology and Chemistry” (“SETAC”). 12 Tr.
at 257. As explained by Dr. King, these four independently published component articles
demonstrate “not only how the method works,” but also review the “causal analysis and
confounding factor analysis and report the results.” Tr. at 256. Ms. Kuehn’s criticism, if valid,
therefore impugns not only the judgment and qualifications of the individual scientists that
contributed to drafting EPA’s Benchmark, but also the reviewing scientists at the journal
Environmental Toxicology and Chemistry.
It may well be the case that the scientific community will one day come to agree with Ms.
Kuehn’s evaluation. It is not, however, the role of this Court to reject the judgments of myriad
experts conducting research within their field of expertise on the basis of uncorroborated opinions
developed for purposes of litigation by an expert in a related, but distinct, field. Rather, the Court
11

See Sir Austin Bradford Hill, The Environment and Disease: Association or Causation?,
58(5) Proceedings of the Royal Society of Medicine 295 (1965), Tr. at 550–51 (“All scientific
work is incomplete—whether it be observational or experimental. All scientific work is liable to be
upset or modified by advancing knowledge. That does not confer upon us a freedom to ignore the
knowledge that we already have, or to postpone the action that it appears to demand at a given
time”).
12
See Susan M. Cormier, Glenn W. Suter II & Lei Zheng, Derivation of a Benchmark for
Freshwater Ionic Strength, 32 Envtl. Toxicology & Chemistry 263 (2013), Pls.' Ex. 3; Susan M.
Cormier & Glenn W. Suter II, A Method for Assessing Causation of Field Exposure–Response
Relationships, 32 Envtl. Toxicology & Chemistry 272 (2013), Pls.' Ex. 4; Susan M. Cormier et al.,
Assessing Causation of the Extirpation of Stream Macroinvertebrates by a Mixture of Ions, 32
Envtl. Toxicology & Chemistry 277 (2013), Pls.' Ex. 5; Glenn W. Suter II & Susan M. Cormier, A
Method for Assessing the Potential for Confounding Applied to Ionic Strength in Central
Appalachian Streams, 32 Envtl. Toxicology & Chemistry 288 (2013), Pls.' Ex. 6.
-15-

must weigh the reliability of testimony in light of the collective judgments made within the
scientific community, and as that community accepts the determinations of EPA’s Benchmark, so
too does this Court.
criticisms—which

if

Stated differently, while the Court is not deaf to Ms. Kuehn’s
well-founded

will

presumably

eventually

enter

the

published

literature—logically, the Court cannot help but conclude that it is likely that Ms. Kuehn is
“baffled” (see e.g., Tr. at 433–34), not because the cadre of EPA and independent scientists
reviewing the Benchmark made fundamental and catastrophic missteps, but because she
individually, lacking the requisite a priori knowledge, did not understand the analysis and
methodology engaged by experts outside her field.
For the foregoing reasons, the Court finds that Ms. Kuehn’s criticisms of EPA’s
Benchmark should not be afforded the great weight encouraged by Defendant. The Court will not
discard the scientific consensus in support of the EPA’s Benchmark based on opinions developed
in preparation for litigation by one questionably qualified expert. More fitting to the role of
courts in considering conflicting scientific and expert determinations, the Court will continue to
defer to the analysis and conclusions reached by the EPA and corroborated by peer-reviewed
publication in esteemed journals.
4. Specific Causation
With respect to specific causation, and contrary to arguments advanced in post-trial
briefing by Defendant, Plaintiffs do not have a burden to exhaustively rule out alternative causes.
Fundamentally, that is not Plaintiffs’ burden because the applicable legal standard is met whether
ionic pollution causes or materially contributes to chemical or biological impairment. 47 C.S.R.
§2-3.2 (emphasis added).

It is readily conceivable that multiple pollutants or stream

-16-

characteristics might simultaneously materially contribute to impairment; and Plaintiff need only
provide evidence showing it is more probable than not that ionic pollution as measured by
conductivity is among some collection of material contributors.
Rulings requiring a “scientific ‘ruling-out’ of alternative causes” in a negligence action are
simply inapposite. Def.’s Post-Trial Brief, ECF No. 120 at 30 (citing Cavallo v. Star Enterprise,
892 F.Supp. 756, 771 (E.D. Va. 1995) aff’d in part, rev’d in part on other grounds, 100 F.3d 1150
(4th Cir. 1996) and In re Breast Implant Litigation, 11 F.Supp. 2d 1217, 1230 (D. Colo. 1998)).
Nor is there a need for a differential diagnosis ruling in the alleged cause and ruling out others.
The need to rule out other potential causes in a specific causation analysis naturally only arises if
the applicable standard requires one thing cause another. Indeed, in all the cases cited by
Defendant in post-trial briefing, the applicable legal standard required the court to determine a
“cause.” See e.g., Amorgianos v. Nat’l R. Passenger Corp., 303 F.3d 256, 268 (2nd Cir. 2002)
(considering admissibility of expert testimony in a negligence action brought under New York law
requiring that some negligent act “cause” harm); Doe v. Ortho-Clinical Diagnostics, Inc., 440 F.
Supp. 2d 465, 478 (M.D.N.C. 2006) (negligence and products liability action brought under a
failure to warn theory and requiring that such failure “caused” harm); Auto. Ins. Co. of Hartford v.
Electrolux Home Prod., Inc., No. 08-cv-00623(A)(M), 2010 WL 3655743, *6 (W.D.N.Y. Sep. 15,
2010) (products liability action requiring that alleged defect “caused” harm); Nelson v. Tennessee
Gas Pipeline Co., 243 F.3d 244, 253 (6th Cir. 2001) (excluding expert testimony in action alleging
negligence, trespass, nuisance, and strict liability claims—all requiring that some act “cause”
harm—where expert (1) did not account for confounding factors and (2) could not identify any
scientific literature supporting his causation theory); Wills v. Amerada Hess Corp., 379 F.3d 32, 50

-17-

(2d Cir. 2004) (wrongful death action brought under the Jones Act and requiring identification of a
“cause” of death); Kilpatrick v. Breg, Inc., 613 F.3d 1329, 1342–43 (11th Cir. 2010) (negligence
and products liability claims both requiring identification of a “cause”).
Defendant argues that “[b]ecause Plaintiffs do not know the impact of other stressors in
Stillhouse, they cannot show that conductivity is a principle cause of impairment, or even a
‘material contribution’ to impairment.” Def.’s Post-Trial Brief, ECF No. 120 at 32. For all the
inapposite case law on causation offered, Defendant has not offered a single case or other shred of
legal authority justifying such an interpretation of “material contribution.” 13
Plaintiffs respond, and the Court agrees, that Defendant overstates the standard. “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, 716 S.E.2d 491, 502 n. 23 (W.Va. 2010) (brackets omitted)
(internal quotation marks omitted). Black’s Law Dictionary (9th ed. 2009) presently defines
“material” as “[o]f such a nature that knowledge of the item would affect a person’s
decision-making; significant; essential.” “Contribute” may be defined as simply as “to help to
cause something to happen.” Merriam-Webster’s Collegiate Dictionary (11th ed. 2003). As a
matter of plain meaning and common sense, it is possible to identify a factor that is materially
contributing to a given condition without conclusively eliminating contributions by additional
factors in a dynamic system. While not ruling out alternative scenarios, such conclusions are
possible where, as here, expert agency findings, a growing body of uncontroverted peer-reviewed
13

For instance, a Pennsylvania state court turned to Black’s Law Dictionary to develop an
interpretation of “materially contributes,” found in a state statute, and concluded that the phrase
“means having a necessary influence or effect.” Com. v. Edwards, 559 A.2d 63, 66 (Pa. Super Ct.
1989).
-18-

scientific literature, and multiple experts all agree that conductivity levels like those found at
Stillhouse Branch materially contribute to impairment, at the very least.
B. Fact-Finding
1. General Causation
In order to prevail, Plaintiffs must first establish that high conductivity associated with
surface mining activity is a general cause of impairment. As explained in Elk Run, 24 F.Supp.3d
at 554–56, the Court continues to credit 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. 14 However, even upon establishing impairment, it will
still be necessary to determine whether a pollutant caused or materially contributed to such scores.
Plaintiffs’ general theory of causation is that surface mining causes or materially
contributes to high conductivity in adjacent streams and that, controlling for other potentially
confounding factors, the unique ionic mixture of alkaline mine drainage is scientifically proven to
cause or materially contribute to a significant adverse impact to the chemical or biological
components of aquatic ecosystems.

As reviewed below, through EPA’s Benchmark, other

peer-reviewed scientific publications, and expert testimony, Plaintiffs have shown, by a
preponderance of the evidence, that high conductivity alkaline mine drainage causes or materially
contributes to a significant adverse impact to the chemical and biological components of aquatic
14

In a letter announcing partial disapproval of WVDEP’s 2012 Section 303(d) list, the EPA
specifically observed that “West Virginia’s use of the ‘gray zone’ is statistically unsupported.” Pl.
Ex. 20 at PE319, Tr. at 58. “WVDEP’s use of a precision estimate to establish the ‘gray zone’ is
not statistically supportable because the potential variability for which the gray zone is purported
to account already is accounted for by variability in the reference sites.” Pl. Ex. 21 at PE358, Tr. at
58–59.
-19-

systems.
a. EPA’s Benchmark
The Court finds that EPA’s Benchmark supports Plaintiffs’ theory of causation. As already
discussed above, this Court owes deference to the EPA’s scientific determinations made within its
area of expertise so long as the agency’s reasoning and conclusions are rational—a hurdle easily
cleared by the Benchmark—a document characterized as “excellent science” by Dr. Palmer. Tr. at
75.
Designed with the purpose of protecting aquatic life in the region, EPA’s Benchmark “uses
field data to derive an aquatic life benchmark for conductivity that can be applied to waters in the
Appalachian Region that are dominated by salts of Ca2+, Mg2+, SO42– and HCO3– at circum-neutral
to mildly alkaline pH.” EPA’s Benchmark, Joint Ex. 58 at JE381; see also Cormier & Suter, Pls.’
Ex. 5 at PE88–89, Tr. at 263 (“Both mined and unmined sites have similar proportions of Ca2+,
Mg2+, HCO3–, and SO42– but very different concentrations. The difference between the ionic
composition of mined watersheds and watersheds with other sources of ions such as brines is very
large”). Because the “salt matrix and background is expected to be similar throughout the
ecoregions,” EPA’s Benchmark is applicable to those parts of West Virginia and Kentucky within
Ecoregions 68, 69, and 70. Id. at JE382. EPA’s Benchmark notes that “prominent sources of salts
in Ecoregions 69 and 70 are mine overburden and valley fills from large-scale surface mining, but
they may also come from slurry impoundments, coal refuse fills, or deep mines.” 15 Id. at JE386.
It is precisely because water in the examined regions is so consistently and uniformly dominated
by a distinct mixture of ionic pollutants that setting a benchmark for the Appalachian Region is
15

“Other sources include effluent from waste water treatment facilities and brines from
natural gas drilling and coalbed methane production.” Id. at JE386.
-20-

possible. Id. (“Because relationships between conductivity and biological responses appear to vary
among different mixtures of ions, this benchmark is limited to two contiguous regions with a
particular dominant source of salinity.”) (emphasis added).
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, Joint Ex. 58 at JE429, JE472; see also id. at JE468 (“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 JE465 (“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 is a substantial source of the salts that are measured as
conductivity.” Id. at JE446.
The EPA ultimately concluded that “[a]t the benchmark of 300 µS/cm, the corresponding
WVSCI score is 64, which is impaired based on West Virginia’s biocriteria. Using logistic
regression, the probability of impairment at 500 µS/cm is 0.72 and at 300 µS/cm is 0.59.” 16 EPA’s

16

In Appendix G, the Benchmark explains validation of EPA’s findings in West Virginia by
-21-

Benchmark, Joint Ex. 58 at JE464; Tr. at 63–64. Stated differently, the EPA found that in central
Appalachian streams, when conductivity reaches 300 µS/cm, it is more likely than not that the
subject stream will be biologically impaired.

In support of both the specific 300 μS/cm

benchmark value and the general causal linkage between conductivity and extirpation of 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 JE400,
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.
Upon review, the SAB commented that “[b]uilding a strong case for causality between
conductivity and loss of genera requires that two linkages be demonstrated: (1) a strong
relationship between stream conductivity and the amount of [valley fill] in the upstream
catchment, and (2) a strong relationship between elevated stream conductivity and loss of benthic
macroinvertebrate taxa. The EPA document presents a convincing case for both linkages.” Pls.’
Ex. 25 at PE383, Tr. at 73. The SAB did not identify a need to conduct further analysis of
temperature, embeddedness or habitat as potential confounding factors beyond Appendix B,
wherein the EPA provided an “Analysis of Potential Confounders.”
b. WVDEP’s relatively conservative identification of “definite stressors”

examining Kentucky data from the same ecoregions. EPA’s Benchmark, Appendix G, Joint Ex. 58
at JE589–99. Using data independently collected by the Kentucky Division of Water
(“KDOW”), the EPA found a remarkably similar benchmark value of 282 µS/cm. Id. at JE589; see
also Cormier & Suter, Assessing Causation of the Extirpation of Stream Macroinvertebrates by a
Mixture of Ions, 32(2) Envtl. Toxicology and Chemistry 277 (2013), Pl.’s Ex. 5.
-22-

In August 2010, the WVDEP released its “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.” Joint Ex. 60. WVDEP explains that “[t]he Guidance is
intended to facilitate compliance with applicable statutory and regulatory requirements and to
provide reasonable means of effectuating the intent of the narrative criteria, as well as to enforce
the mandate of the Clean Water Act (“CWA”) that every permit contain effluent limitations that
reflect the practicable pollution reduction a state can achieve.” Id. at JE694 (citation omitted).
While disagreeing with EPA’s reasoned scientific conclusion on what conductivity limits are
necessary to protect the chemical and biological integrity of West Virginia’s streams, the WVDEP
nonetheless did consider its own independent conductivity thresholds (though it did so without
explaining scientific research justifying its conclusions). Id. at JE700. The WVDEP recognizes
ionic strength as a “definite stressor” in alkaline drainage when conductivity surpasses 1533
µS/cm, sulfates surpass 417 mg/L, and chlorides surpass 230 mg/L. Id.

Upon examining

WVDEP’s threshold levels, Dr. King remarked that the levels are “very conservative.” Tr. at 251–
52.

However conservative, it is at least evident that the WVDEP accepts that increased

conductivity causes or materially contributes to decreases in aquatic life.
c. Peer-reviewed scientific publications
Even without affording deference to EPA’s Benchmark, relying on the extant collection of
peer-reviewed scientific publications, the Court could still find that Plaintiffs have proven by a
preponderance of the evidence that (1) alkaline mine drainage typical in central Appalachian
surface mining operations causes or materially contributes to high conductivity in receiving
streams and (2) the characteristic composition of such high conductivity alkaline mine drainage

-23-

causes significant biological impairment to aquatic macroinvertebrates.
First, as mentioned above, the lead authors of EPA’s Benchmark, Dr. Susan Cormier and
Dr. Glenn Suter, subsequently published several peer-reviewed component sections of the
Benchmark in the scientific journal Environmental Toxicology and Chemistry. 17 In one of these
component articles, Cormier and Suter analyzed six characteristics of causation: co-occurrence,
preceding causation, interaction, alteration, sufficiency, and time order, finding all but one
strongly supported the causal relationship, with no evidence available for the outstanding
characteristic. Susan M. Cormier et al., Assessing Causation of the Extirpation of Stream
Macroinvertebrates by a Mixture of Ions, 32 Envtl. Toxicology & Chemistry 277 (2013), Pls.' Ex.
5, Tr. at 258–72. Cormier and Suter found that “[t]he conductivity at mined sites is 10 to 50 times
greater than at unmined sties. The source of increased conductivity is independently corroborated
and consistent.” Id. at PE88, Tr. at 262–63. Relying on multiple lines of evidence, including not
only their own findings in developing the Benchmark, but also based on the collection of research
available in the published literature, Cormier and Suter conducted a formal causal analysis linking
high conductivity and extirpation of sensitive macroinvertebrates in central Appalachian streams:
Through this assessment, the authors found that a mixture containing the ions
17

See Susan M. Cormier, Glenn W. Suter II & Lei Zheng, Derivation of a Benchmark for
Freshwater Ionic Strength, 32 Envtl. Toxicology & Chemistry 263 (2013), Pls.' Ex. 3; Susan M.
Cormier & Glenn W. Suter II, A Method for Assessing Causation of Field Exposure–Response
Relationships, 32 Envtl. Toxicology & Chemistry 272 (2013), Pls.' Ex. 4; Susan M. Cormier et al.,
Assessing Causation of the Extirpation of Stream Macroinvertebrates by a Mixture of Ions, 32
Envtl. Toxicology & Chemistry 277 (2013), Pls.' Ex. 5; Susan M. Cormier et al., Relationship of
Land Use and Elevated Ionic Strength in Appalachia Watersheds, 32 Envtl. Toxicology &
Chemistry 296 (2013), Pls.’ Ex. 6; Susan M. Cormier & Glenn W. Suter II, A Method for Deriving
Water-Quality Benchmarks Using Field Data, 32 Envtl. Toxicology & Chemistry 255 (2013),
Pls.’ Ex. 7; Glenn W. Suter II & Susan M. Cormier, A Method for Assessing the Potential for
Confounding Applied to Ionic Strength in Central Appalachian Streams, 32 Envtl. Toxicology &
Chemistry 288 (2013), Pls.' Ex. 8.
-24-

[calcium, magnesium, bicarbonate, and sulfate], as measured by conductivity, is a
common cause of extirpation of aquatic macroinvertebrates in Appalachia where
surface coal mining is prevalent. The mixture of ions is implicated as the cause
rather than any individual constituent of the mixture. The authors also expect that
ionic concentrations sufficient to cause extirpations would occur with a similar salt
mixture containing predominantly [bicarbonate, sulfate, calcium, and magnesium]
in other regions with naturally low conductivity.
Id. at PE85, Tr. at 257–58.
Cormier and Suter independently published their confounding factor analysis as well.
Cormier & Suter, A Method for Assessing the Potential for Confounding Applied to Ionic Strength
in Central Appalachian Streams, 32(2) Envtl. Toxicology and Chemistry 288 (2013), Pls.’ Ex. 8.
Using a weight-of-evidence approach, that analysis considers twelve potential confounders:
habitat, organic enrichment, nutrients, deposited sediments, pH, selenium, temperature, lack of
headwaters, catchment area, settling ponds, dissolved oxygen, and metals. Id. at PE112, Tr. at 274.
By adapting principles of epidemiology to the applied study of multivariate ecological field data,
Cormier and Suter report examination and methodical elimination of each potential confounder.
Second, Plaintiffs presented numerous other scientific articles published in peer-reviewed
journals, all supporting the conclusions reached by the Benchmark. As explained by Dr. King,
“it’s really getting to the point where we have a substantial literature that is arriving at this
conclusion that conductivity associated with alkaline mine drainage is very strongly linked to
biological degradation; and it seems to happen at levels around 300 [µS/cm] . . . and it continues to
get worse as conductivity increases.” Tr. at 245. As surveyed below, these articles address the
relationship between mining and impairment in central Appalachian streams, observed extirpation
of macroinvertebrates, and the relative significance of conductivity as opposed to other potentially
confounding factors.

-25-

For purposes of this case, this line of published peer-reviewed scientific articles begins
with Dr. Gregory Pond’s findings based on a field study concluding that “[f]our lines of evidence
indicate that mining activities impair biological condition of streams: shift in species assemblages,
loss of Ephemeroptera taxa, changes in individual metrics and indices, and differences in water
chemistry.” 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) (“2008 Pond”), Pls.' Ex. 15; Tr. at 39–41. Dr.
Pond’s findings were published in the Journal of the North American Benthological
Society—according to Dr. Palmer, the top stream ecology journal. Tr. at 40.
The connection between mining and impairment, not surprisingly, continued to be
supported by subsequent studies examining the extirpation of macroinvertebrates. In 2010, Dr.
Pond published a peer-reviewed scientific article in Hydrobiologia addressing patterns of taxa loss
in headwater streams in eastern Kentucky. Gregory J. Pond. Patterns of Ephemeroptera taxa loss
in Appalachian headwater streams (Kentucky, USA), 641(1) Hydrobiologia 185 (2010), Pls.’ Ex.
16, Tr. at 44–46. In the abstract, Dr. Pond reports that “mean mayfly richness and relative
abundance were significantly higher at [reference] sites compared to all other categories; [mined]
sites had significantly lower metric values compared to [residential] and [mixed mined/residential]
sites.” Id. at PE223, Tr. at 45. Agreeing with Dr. Pond’s conclusion, Dr. Palmer restated his paper
as “concluding that the abundance of mayflies declines dramatically in mined streams even in
comparison to watersheds that have a little bit of mining and residential development in them.” Tr.
at 45. To Dr. Palmer’s knowledge, no subsequent publication invalidates these findings. Id.
In 2012, Dr. Pond published an additional peer-reviewed scientific article in

-26-

Hydrobiologia, this time addressing the effect of coal mining on stoneflies and caddisflies.
Gregory J. Pond, Biodiversity Loss in Appalachian Headwater Streams (Kentucky, USA):
Plecoptera and Trichoptera Communities, 679 Hydrobiologia 1, 97 (Jan. 2012), Pls.' Ex. 17.
Consistent with other published findings, Dr. Pond found, that while any disturbance can cause a
reduction in the number of stoneflies and mayflies, the greatest reduction in numbers are suffered
at sites impacted by mining. Id. at PE240, Tr. at 45–46 (“Core caddisfly genera . . . were
extirpated from most disturbed sites. Species richness was significantly higher at reference sites
and reference site mean tolerance value was lowest compared to all other categories; relative
abundance of both orders was variable between disturbance groups”).
As the body of scientific literature developed, conductivity emerged as a significant
contributor to the observed biological impairment coincident to mining activities. In 2010,
Plaintiffs’ expert, Dr. Palmer, and Dr. Emily Bernhardt published a peer-reviewed scientific article
in Science magazine—a prestigious scientific journal—reporting their finding that, in some 1058
West Virginia streams, as sulfates and other ions increased, “the stream condition index declined,
as did the number of insect genera, the number of intolerant genera, and the number of mayfly
genera.” Tr. at 37–39 (explaining the significance of M.A. Palmer et al., Mountaintop Mining
Consequences, 327 Sci. 148 (2010), Pls.’ Ex. 13.
These findings by Dr. Plamer and Dr. Berhardt further confirmed Pond’s earlier work
examining the relative influence of various factors on stream quality. Table 5 in the 2008 Pond
study shows correlation coefficients for the GLIPMSS and WVSCI and the significance of various
factors, e.g., pH, specific conductance, and embeddedness. Pls.’ Ex. 15 at PE213. According to
Dr. Pond’s findings, temperature and embeddedness have a relatively very small effect on
-27-

GLIMPSS and WVSCI scores, with conductivity having a much more significant effect. Id., Tr. at
42. In Dr. Palmer’s expert opinion, Dr. Pond’s findings support the conclusion that conductivity
related to mining is “the primary leading factor” in stream impairment. 18 Tr. at 43–44; see also
Testimony of Dr. King, Tr. at 214 (“what they found was a very strong relationship between
conductivity associated with alkaline mine drainage and both WVSCI and the GLIMPSS scores”).
As of trial in this matter, and to Dr. Palmer’s knowledge, the conclusions in the 2008 Pond paper
continue to be supported by all subsequently published literature. Tr. at 41.
More recently, scientists have done more than note a connection between conductivity
caused by mining and impairment; scientists have embarked on determining thresholds at which
conductivity has devastating effects. In 2011, a collection of WVU researchers published a
peer-reviewed scientific article in the Journal of the North American Benthological Society
examining “the relationship between both mining and residential and commercial development on
biological condition of streams,” finding “that streams that had both relatively high levels of
development and mining had lower biological condition than streams that had just development or
just mining.” 19 Tr. at 207 (explaining the findings of Eric Merriam et al., Additive Effects of
Mining and Residential Development on Stream Conditions in a central Appalachian Watershed,
30(2) J. N. Am. Benthological Soc. 399 (2011), Pls.’ Ex. 12). That study further explained that
“specific conductance was the major stressor associated with mining,” and that biological
18

As explained by Dr. King, because the 2008 Pond study examined conductivity data
collected over the course of a year, that study included more conductivity data on streams than is
available in the WVDEP database. Tr. at 214. Owing to better underlying conductivity data, the
2008 Pond paper shows that “[w]hen we have better conductivity estimates, you end up explaining
a lot more variance in the WVSCI scores and in the GLIMPSS scores,” with as much as 80% of the
variance explained. Tr. at 214–15.
19
The Journal of the North American Benthological Society—now known as Freshwater
Science—is regarded by Dr. King as the “best journal for stream ecology.” Tr. at 212.
-28-

impairment occurred at 250 µS/cm. Id. at PE166, PE167, Tr. at 209, 211.
We found significant effects of mining on in-stream conditions. Increased levels of
mining resulted in poorer water quality, primarily through increases in specific
conductance and associated dissolved chemical constituents (i.e., [sulfate, calcium,
magnesium, sodium, and nitrate]). [Selenium] concentrations exceeded US EPA
water-quality standards in several mined sites. However, no relationship was
observed between [selenium] and total [percent] mining. Mining also resulted in
significant alterations to macroinvertebrate community structure through decreases
in sensitive taxa (i.e., EPT richness, E richness, and [percent] E), and
Ephemeroptera consistently showed the greatest decline. These alterations led to
significant decreases in mWVSCI score. Mining had no measurable effect on
habitat complexity or quality. . . . Increased specific conductance is consistently the
dominant stressor in streams affected by mountaintop removal mining in southern
West Virginia. . . . Furthermore, increased specific conductance is a consistently
important predictor of ecological condition in these systems.
Id. at PE167–68 (citations omitted), Tr. at 209–10. As explained by Dr. King, Merriam et al., are
“suggesting that the mixture of ions that constitute specific conductance or conductivity . . . is
having a direct effect on aquatic macroinvertebrates, particularly mayflies, and that it’s
independent of many of these other factors that you might normally associate with degradation and
biological impairment.” Tr. at 211. “Consequently, conductance may be a reliable single indicator
of coal-mining influence on aquatic ecosystems.” Pls.’ Ex. 12 at PE170, Tr. at 211.
Similarly, in 2012, Emily Bernhardt, Brian Lutz, and Dr. King, among other collaborators,
published a peer-reviewed scientific article in Environmental Science and Technology, wherein
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 co-developed. Bernhardt et al., How
Many Mountains Can We Mine?: Assessing the Regional Degradation of Central Appalachian
Rivers by Surface Coal Mining, 46(15) Environmental Science and Technology 8115 (July 2012)
-29-

(“How Many Mountains”), Pls.’ Ex. 2. The research underlying How Many Mountains occurred
coincident to development of the Benchmark, and the authors of How Many Mountains sought to
screen and examine WVDEP data “in a very different way” in order to see how their results might
compare to EPA’s findings. 20 Tr. at 238–39. Upon completion, How Many Mountains reported
results that were “remarkably consistent” with EPA’s findings, identifying a WVSCI impairment
threshold of 308 µS/cm and a threshold of 283 µS/cm using TITAN. Tr. at 241.
Most recently, in 2014, Dr. Pond, Margaret Passmore, Kelly Krock, and Jennifer
Fulton—all with the EPA—along with Nancy Pointon, John Felbinger, Craig Walker, and
Whitney Nash—colleagues from the OSMRE—published a peer-reviewed scientific article in
Environmental Management finding, among other conclusions, that the vast majority of streams
adjacent to reclaimed mine sites with valley fills were still impaired eleven to thirty-three years
after reclamation. Pond et al., Long-Term Impacts on Macroinvertebrates Downstream of
Reclaimed Mountaintop Mining Valley Fills in Central Appalachia, 54(4) Envtl. Mgmt. 919
(October 2014), Pls.’ Ex. 19, Tr. at 49–51 (“Although these [valley fills] were constructed
pursuant to permits and regulatory programs that have as their stated goals that (1) mined land be
reclaimed and restored to its original use or a use of higher value, and (2) mining does not cause or
contribute to violations of water quality standards, we found sustained ecological damage in
headwater streams draining [valley fills] long after reclamation was completed”). The article
explains that they “found that known sensitive taxa such as the mayflies Ephemerella and Epeorus
and the caddisfly Neophylax were found at 100% of the reference sites but were absent from 12 of
20

How Many Mountains relied on a small subset of the WVDEP database, screening the data
for potential confounding factors, totaling approximately 223 data points. Tr. at 242–43. EPA’s
Benchmark relied on the WVDEP database for ecoregions 69 and 70 and a smaller EPA Region 3
dataset for the same ecoregions, totaling approximately 2,200 data points. Tr. at 243.
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15 (~80%) of the [valley fill] sites.” Pls.’ Ex. 19 at PE294, Tr. at 54. As explained by Dr. Palmer,
this most recent article by Dr. Pond and colleagues, based on a natural experiment, showed that
“the exceptions to the—what [she] would call a rule, that when conductivity reaches a certain point
you get impairment, were due to drifting organisms” from unmined upstream tributaries. Tr. at 50–
51.
Furthermore, it is also of note that in selecting reference streams for this most recent study,
Dr. Pond and his collaborators selected sites with comparable temperature and habitat regimes to
the mined sites. Pls.’ Ex. 19 at PE289, Tr. at 51–52 (“Local reference streams were sighted in close
proximity (range .75 to 10.5 km) to paired [valley fills] . . . and had similar catchment areas, forest
types, and base geology”).

That methodological approach had the effect of eliminating

temperature and habitat scores as potential confounding factors. Pls.’ Ex. 19 at PE 298, Tr. at 52,
56 (“Habitat can be a limiting factor, but by design, we removed significant habitat degradation
factors by selecting sample reaches with relatively good habitat and intact riparian vegetation at
reference and [valley fill] sites”). The experiment also relied on reference sites that “were not
pristine, as their catchments frequently had poorly maintained roads and culverts, utility
right-of-ways, gas wells, or underground mining that did not discharge to the watershed,” thereby
further eliminating potentially confounding factors. Pls.’ Ex. 19 at PE289, Tr. at 52. As explained
by Dr. Palmer, in this study “[the researchers] took exactly the approach you would take in trying
to control for variables that you weren’t interested in measuring necessarily or that you weren’t
interested in testing.” Tr. at 57.
Not only has the literature consistently supported the same conclusions regarding the
relationship between mining, conductivity, and impairment in central Appalachian streams, that

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consensus has developed through reliance on different methodologies and data sets. Tr. at 70. For
instance, as explained by Dr. Palmer at trial, through reliance on independent field data, the 2008
Pond study reaches the same conclusion as researchers relying on the WVDEP dataset. Tr. at 41.
Thus, whether relying on data from West Virginia or Kentucky state databases (as the EPA did in
developing and verifying the Benchmark), subsets thereof (as Bernhardt, Lutz, and King did in
How Many Mountains), narrowing analysis to individual watersheds (as Merriam et al., did), or on
the basis of independently collected field work (as was repeatedly done by Pond), researchers
consistently observed not only biological impairment, but impairment occurring at remarkably
similar conductivity thresholds. These results held not only with variation in the data, but also with
variation in the analytical methodology applied to examine that data.
Scientific consensus and independent verification continues with respect to identification
of taxa and species conductivity sensitivity. A comparison of How Many Mountains and the 2014
Pond paper shows that both studies identified similar taxa as sensitive to and tolerant of high
sulfate concentrations—one of the main constituents of conductivity—and conductivity levels. Tr.
at 222–25. Dr. King explained this similarity by noting that sulfates are a “predictive chemical
component, part of the mixture of ions that are associated with alkaline mine drainage,” and
therefore “sulfates is just very highly correlated to [conductivity levels] because it’s part of it.” Tr.
at 225. These similar findings regarding species sensitivities were shared not only by How Many
Mountains and 2014 Pond, but are also consistent with the findings of EPA’s Benchmark despite
the fact that each study relied on different datasets. 21 Tr. at 228.
Defendant argues that none among these numerous peer-reviewed scientific articles makes
21

It is important to also note that species sensitivity varies with the stressor. For instance, Dr.
King explained that mayflies have a much greater tolerance to degradation relative to ionic stress.
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any statements regarding causation, instead, merely reaching conclusions with respect to
correlation. In response, the Court first notes EPA’s Benchmark as well as Cormier and Suter’s
subsequently published component papers do report a causal relationship between high
conductivity alkaline mine discharges and extirpation of aquatic insects. As discussed above, the
deference owed to those findings by the Court readily survives the lone criticisms of a relatively
under-qualified expert developed for purposes of litigation.
Even without the appropriate deference, through a survey of the uncontroverted scientific
literature on the subject, the Court finds that Plaintiffs have proven their theory of general
causation by a preponderance of the evidence. As already explained by the Fourth Circuit,
“epidemiological studies are not necessarily required to prove causation, as long as the
methodology employed by the expert in reaching his or her conclusion is sound.” Benedi v.
McNeil-P.P.C., Inc., 66 F.3d 1378, 1384 (4th Cir. 1995); see also United States v. W.R. Grace, 504
F.3d 745, 765 (9th Cir. 2007) (“the fact that a study is associational—rather than an
epidemiological study intended to show causation—does not bar it from being used to inform an
expert’s opinion”).

In fact, even the Reference Manual on Scientific Evidence states that

“epidemiology cannot prove causation; rather, causation is a judgment for epidemiologists and
others interpreting the epidemiological data.” 22 Manual at 597 (3rd Ed. 2011). “[A]n evaluation of
data and scientific evidence to determine whether an inference of causation is appropriate requires
judgment and interpretation.” Id. at n.140. Plaintiffs have presented two experts with the requisite
experience and judgment, whose opinions on the causal relationship between conductivity and

22

Defendant’s expert, Ms. Kuehn similarly testified that “[w]e cannot typically observe the
cause and effect relationships we’re interested in.” Tr. at 399. She further explained that “we
observe associations in samples because we cannot observe causation as it occurs.” Tr. at 405.
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impairment will be outlined below.
More fundamentally, Plaintiffs are required to meet a legal—as opposed to
scientific—standard of proof. As a matter of law, Plaintiffs’ burden is “not scientific certainty but
legal sufficiency.” Ferebee v. Chevron Chem. Co., 736 F.2d 1529, 1536 (D.C. Cir. 1984). “[T]hat
science would require more evidence before conclusively considering the causation question
resolved is irrelevant.” Id. It is with the legal standard in mind that the Court is able to find that
the weight of evidence shows that it is more likely than not that high conductivity in streams
impacted by alkaline mine drainage causes or materially contributes to chemical and biological
impairment.
d. Expert testimony
The Court continues to find the testimony of Dr. Palmer and Dr. King to be very
persuasive. First, Dr. Palmer, a professor at the University of Maryland, was admitted as an
expert before this Court in aquatic ecology and stream restoration. Dr. Palmer has authored more
than 150 peer-reviewed scientific articles in the field of aquatic ecology, including two papers
particularly addressing the effects of ionic stress on impaired streams. Tr. at 16, 18–19. In
addition to stream ecology research conducted in Dr. Palmer’s laboratory at the University of
Maryland, she also runs the Socio-Environmental Synthesis Center, a multi-million dollar project
funded by the National Science Foundation that boasts 16 staff members, 10 post-doctoral scholars
and roughly 500 visiting scholars each year. Tr. at 17–18. Dr. Palmer also has field experience
relevant to this dispute; she is familiar with Appalachian headwater streams, mining impacts, and
stream assessments, including physical, chemical, and biological assessments. Tr. at 19–20.
Second, Dr. King was accepted as an expert in aquatic ecology, entomology, and

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ecological data analysis. 23 Tr. at 206. He is a tenured professor at Baylor University in Waco,
Texas, where he teaches courses in stream ecology, aquatic biology and taxonomy of aquatic
insects, among others. Joint Ex. 24, Tr. at 199. He has published over fifty articles in his areas of
expertise, and has served as a both a reviewer and a subject matter editor for Ecological
Applications and Freshwater Science. Tr. at 199–200, 202–203.

At Baylor, Dr. King is

responsible for the Aquatic Ecology Lab, where he oversees five graduate students, three full-time
technicians, and several undergraduate researchers. Tr. at 200. Currently, ongoing research
projects in Dr. King’s lab include the development of a water quality criteria for atrazine and an
NSF funded project examining environmental implications of nanomaterials in aquatic
ecosystems. Tr. at 200. Dr. King co-developed a technique called Threshold Indicator Taxa
Analysis (“TITAN”). Tr. at 204. Since announcing TITAN via peer-reviewed journal publication
in 2010, Dr. King reported that—though admittedly criticized by one ecologist—TITAN has been
used in roughly 60 articles, including use by Connecticut and Massachusetts in biological
condition work and the United States Geological Survey (“USGS”) in the Northeast. Tr. at 204,
343. Additionally, Dr. King was recently selected by a joint committee of governor-appointed
scientists from Oklahoma and Arkansas to lead an independent stressor response study related to
phosphorus” in waterways in northeastern Oklahoma and northwest Arkansas. Tr. 201–02.
Upon summarizing the literature to date, Dr. Palmer explained that she was not aware of
any publications or research contradicting the published findings linking mining, conductivity, and
23

Dr. King prefers to identify as an expert in ecological data analysis as opposed to an expert
in statistics because “ecological data analysis deals specifically with the unique idiosyncratic
properties of ecological data, which makes them generally not amenable to traditional or
conventional statistical procedures, particularly when you’re talking about species assemblages
and multiple predictors… [a]nd while I have a strong foundation in conventional statistics, that’s
my area of expertise.” Tr. at 198–99.
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impairment in central Appalachian streams. Tr. at 74. Similarly, in Dr. King’s expert opinion, the
body of scientific literature on the question available today demonstrates that conductivity is likely
causing biological impairment: “there has not been a study that has generated results that lead to .
. . any other conclusion other than conductivity being a very consistent, predictable causal factor in
the impairment of Appalachian streams.” Tr. at 252.

Dr. King further explained that the

significance of this collection of studies lies in the fact that the scientific method is itself based on
the development of such consensus in the literature, “and when you have a consensus, that’s where
we get to the point where we say this is a fact of science.” Tr. at 252–53. In fact, while the formal
causal analysis conducted by EPA further shores up the relationship between conductivity and
impairment, Dr. King explained that the literature alone reveals a “remarkably strong predictive
relationship” and a “compelling” case that “conductivity associated with mine drainage causes
biological impairment.” 24 Tr. at 253–54. Thus, even without the Benchmark, “with all the other
literature that is out there now, the consensus is, yes, [conductivity] is causing impairment.” Tr. at
255.
Of course, as already reviewed, Plaintiffs’ generally theory of causation does not rest
solely on the literature.

Rather, Plaintiffs have presented more than sufficient evidence

supporting general causation through the published, peer-reviewed scientific literature, the
reasoned, scientific judgments of an expert agency as expressed in EPA’s Benchmark, the
opinions of markedly qualified expert researchers in the field.
2. Specific Causation

24

Furthermore, in Dr. King’s opinion, while a formal causation analysis takes the reliability
of these conclusions “to the next level,” that analysis is neither necessary nor is it generally
conducted in the course of answering most scientific questions. Tr. at 254.
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There is no reason to doubt that Stillhouse Branch is biologically impaired. In 2003,
WVDEP conducted macroinvertebrate sampling at Stillhouse Branch and found the stream’s
WVSCI score to be 47—well below the impairment threshold. Joint Ex. 43 at ¶12. In 2008, the
WVDEP listed Stillhouse Branch as biologically impaired and identified ionic toxicity as the
significant stressor. Id. at ¶13. Four years later, WVDEP sampling revealed an even lower
WVSCI score of 31.6 at Stillhouse Branch—less than half the threshold impairment score. Id. at
¶14.

Not surprisingly then, West Virginia’s 2012 Section 303(d) List continued to report

Stillhouse Branch as biologically impaired throughout the entire length of the stream, noting
mining as the source of impairment. Joint Ex. 59 at JE693.
In addition to WVDEP’s now long-standing determination that Stillhouse Branch is
biologically impaired, Plaintiffs’ experts also conducted sampling confirming the continuing
biological impairment of Stillhouse Branch. Sampling conducted by Plaintiffs’ expert, Dr.
Christopher Swan, on September 30, 2013, returned a WVSCI score of 58.17, and a GLIMPSS
score of 27.71, both below the respective impairment thresholds for each multimetric index. Joint
Ex. 13.
Thus, the question is not whether the stream is impaired, but rather whether ionic pollution
from Defendant’s discharge is causing or materially contributing to the conditions at Stillhouse
Branch. To answer that question, the Court will consider Plaintiffs’ evidence showing that
Defendant’s discharge of ionic pollution is of a characteristic composition presently known in the
scientific community to cause or contribute to impairment in Central Appalachian streams.
By stipulation of the parties entered June 3, 2014, Defendant reported pre-mining surface
water quality data to WVDEP in its 1996 permit application. Joint Ex. 43, ECF No. 52. That

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baseline data included samples taken roughly monthly from December 1994, through May 1995,
and reported conductivity ranging from 47 µS/cm to 104 µS/cm and sulfates ranging from 4 mg/L
to 22 mg/L. Joint Ex. 43 at JE126.
Conductivity and sulfates notably increased after Defendant began mining in the
watershed. Samples taken by WVDEP at Stillhouse Branch from 2003 through 2012 showed
conductivity ranging from 2,610 µS/cm on May 9, 2012, to 3,964 µS/cm on May 12, 2004. Id. at
JE127–28. All of the recorded samples taken by WVDEP during this time period reported
conductivity levels above 300 µS/cm. Id. Dr. Palmer characterized these numbers as significantly
elevated relative to the pre-mining sampling data. Tr. at 88–89. Similarly, samples taken by
WVDEP at Stillhouse Branch showed sulfate levels consistently above 1,500 mg/L, in some
instances nearly as high as 3,000 mg/L. Joint Ex. 43 at JE127–28.

Not only are these

measurements extremely high relative to the background sulfate levels, but the measurements are
also well above the 50 mg/L threshold identified by WVDEP as indicative of mining impacts. See
Tr. at 92; see also How Many Mountains, Pls.’ Ex. 2 at PE23, Tr. at 247 (finding a sulfate threshold
for impairment under WVSCI and TITAN at 50 mg/L and a threshold for impairment under
GLIMPSS at 52 mg).
In addition to samples taken by WVDEP, the parties’ own sampling reveals the same
remarkably high levels of conductivity. First, more than half of the bi-monthly samples taken by
Defendant at Outfall 029 from October 2011 through December 2012 showed conductivity above
3,000 µS/cm. Joint Ex. 43 at JE129. All bi-monthly samples collected by Defendant during this
time period reported conductivity levels above 300 µS/cm. Id.

Additionally, on behalf of

Plaintiffs, on September 30, 2013, Dr. Evan Hansen, with Downstream Strategies, conducted

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sampling in Stillhouse Branch at Outfall 029 and just downstream.

Dr. Hansen reported

conductivity measurements of 2,826 µS/cm at Outfall 029 and 2,825 µS/cm in the stream. Joint
Ex. 4.
Given the multifold increase in conductivity observed after mining commenced in the
Stillhouse Branch watershed, it can be reasonably concluded that mining is more likely than not
the cause of high conductivity levels at Stillhouse Branch. In fact, that arguably understates the
degree of confidence the evidence allows. Over time, Defendant’s mining operations stretched
across over 90% of the Stillhouse Branch watershed. There is simply no evidence of another land
use activity (e.g., agriculture, urbanization, industrialization) that could account for the
significantly altered state of Stillhouse Branch.
In reporting to the EPA, WVDEP evidently reached the same conclusion, identifying
mining as the source of impairment at Stillhouse Branch. 2012 303(d) List, Joint Ex. 59 at JE693.
And that identification was made by WVDEP not only relative to other potential land uses, but
also relative to the option to report “unknown” as the cause of impairment (sixteen of the
twenty-two streams on the same page as Stillhouse Branch report “unknown” as the cause of
impairment). Indeed, even Defendant’s expert, Dr. Menzie agreed that Fola’s mining operations
caused impairment at Stillhouse Branch. Tr. at 651.
The evidence further showed that it is more likely than not that the aquatic
macroinvertebrate community has been harmed because of ionic stress resulting from mining. As
discussed above, multiple researchers have published findings identifying the how particular
aquatic taxa respond to ionic stress, all reaching similar results. As ionic concentrations increase,
mayflies (e.g., Ephemerella, Epeorus, and Drunella) dramatically decline, while other

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macroinvertebrates thrive (e.g., Hydrophsyche, Cheumatopsyche, and Cricotopus). Tr. at 219–29.
The biological sample collected and analyzed by Dr. Swan contained no mayflies whatsoever, nor
did it contain any of the conductivity sensitive genera identified by Dr. King. Joint Ex. 15.
Instead, the sample was dominated by conductivity tolerant macroinvertebrates. Joint Ex. 15.
The complete extirpation of sensitive macroinvertebrates is unsurprising. As thoroughly
reviewed above, experts anticipate extirpation once conductivity levels surpass 300 µS/cm. The
conductivity levels at Stillhouse Branch have been reported to be tenfold that estimated
benchmark. Indeed, conductivity levels at Stillhouse Branch are regularly twice the levels of
even the WVDEP’s most conservative estimate of the threshold at which conductivity becomes a
“definite stressor.”
With that, Plaintiffs have already made a compelling case that, at the very least, ionic
pollution at Stillhouse Branch is materially contributing to chemical and biological impairment,
and yet Plaintiffs’ expert still have more to offer. After reviewing all the data and conducting her
own on site analysis, Dr. Palmer concluded that habitat conditions could not explain the
impairment she observed at Stillhouse Branch. Tr. at 97–98. She further analyzed rocks in the
streambed, concluding that the level of embeddedness was not a function of sediment
accumulation, but rather a function of chemical precipitates. Tr. at 94. Dr. Karen Prestegaard, a
geochemist, later confirmed Dr. Palmer’s hypothesis, determining that the accretions on the
streambed were composed of manganese and either calcium sulfate or calcium carbonate, and are
thus a result of ionic pollution. Tr. at 762–63. On the basis of all the evidence and in light of her
considerable expertise, Dr. Palmer unequivocally concluded that elevated conductivity levels and
sulfates are causing biological impairment at Stillhouse Branch. Tr. at 21, 25, 90–91, 117.

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Dr. King similarly concluded that the conductivity levels at Stillhouse Branch would
“unequivocally impair a stream.” Tr. at 306. Dr. King considered neither temperature nor habitat
to be causes of impairment at Stillhouse, noting a fairly average RBP score and a temperature
range appropriate to support healthy aquatic life. Id. Dr. King explained lowering the temperature
at Stillhouse “would have absolutely no effect.” 25 Tr. at 308. Thus, on the basis of all the
evidence and his considerable expertise, Dr. King remains “absolutely convinced” that Stillhouse
Branch would still be biological impaired so long as conductivity levels were not addressed. Tr. at
308.
Given the large body of evidence presented by Plaintiffs and the lack of any meaningful
counter-evidence, the Court FINDS that Plaintiffs have demonstrated, by a preponderance of the
evidence, that high conductivity in downstream Stillhouse Branch is causing—or, at the very least
materially contributing to—a significant adverse impact to the chemical and biological
components of the stream’s aquatic ecosystems.
III.

CONCLUSION

In multiple ways, the chemical and the biological components of the aquatic ecosystems
found in Stillhouse Branch have been significantly adversely affected by Defendant’s discharges.
The water chemistry of this stream 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 the stream have also been significantly injured, in
25

In full context, Dr. King opined that, at Stillhouse Branch, “unequivocally the principal
cause [of impairment] is conductivity associated with the mine, and that if you were to reduce the
conductivity to a level of, say, 200, that you would see a dramatic increase in the number of
sensitive taxa. . . . However, if you were to, for example, lower the temperature by two or three
degrees consistently, my opinion is that it would have absolutely no effect on this stream. . . . It
would still be biologically impaired.” Tr. at 307–08.
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that species diversity—and, in some areas, overall aquatic life abundance—is profoundly reduced.
Stillhouse Branch is unquestionably biologically impaired, in violation of West Virginia’s
narrative water quality standards, with current WVSCI scores falling well below the threshold
score of 68.
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. This West Virginia stream,
like the reference streams used to formulate WVSCI, was once a thriving aquatic ecosystem. 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 FINDS that Plaintiffs have established, by a preponderance of the
evidence, that Defendant has committed at least one violation of its permits by discharging into
Stillhouse Branch high levels of ionic pollution, which have caused or materially contributed to a
significant adverse impact to the chemical and biological components of the stream’s aquatic
ecosystem, in violation of the narrative water quality standards incorporated into those permits.
The Court DIRECTS the Clerk to send a copy of this written Opinion and Order to counsel
of record and any unrepresented parties.
ENTER:

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January 27, 2015