Ohio Valley Environmental Coalition et al v. Fola Coal Company

Filing 74

MEMORANDUM OPINION AND ORDER pursuant to the 2/27/2017 64 Order and for the reasons, as directed and set forth more fully herein, the Court GRANTS Plaintiffs' Motion for 49 Partial Summary Judgment. Signed by Judge Robert C. Chambers on 4/4/2017. (cc: counsel of record; any unrepresented parties) (taq)

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
OHIO VALLEY ENVIRONMENTAL COALITION,
WEST VIRGINIA HIGHLANDS CONSERVANCY,
WEST VIRGINIA RIVERS COALITION,
and SIERRA CLUB,
Plaintiffs,
v.

CIVIL ACTION NO. 2:15-1371

FOAL COAL COMPANY, LLC,
Defendant.
MEMORANDUM OPINION AND ORDER
In an order dated February 27, 2017, the Court granted Plaintiffs’ Motion for Partial
Summary Judgment. ECF No. 64. The Court reserved its discussion of the bases for that decision
for a later opinion. The following Memorandum Opinion and Order sets forth the Court’s reasons
for granting Plaintiffs’ Motion.
I.

BACKGROUND

Plaintiffs Ohio Valley Environmental Coalition (“OVEC”), West Virginia Highlands
Conservancy, West Virginia Rivers Coalition, and Sierra Club filed this case pursuant to the citizen

suit provisions of the Federal Water Pollution Control Act (“Clean Water Act” or “CWA”), 33
U.S.C. §§ 1251–1388, and the Surface Mining Control and Reclamation Act (“SMCRA”), 30
U.S.C. §§ 1201–1328. Compl., ECF No. 1. Before proceeding to the parties’ arguments, the Court
will first discuss the relevant regulatory framework and then the factual background of this case.
A. 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 a National Pollutant Discharge Elimination System
(“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. See, e.g., Ohio Valley Envtl. Coal., Inc. v. Fola Coal Co., LLC, 82 F. Supp. 3d
673, 676 (S.D. W.Va. 2015), aff’d, 845 F.3d 133 (4th Cir. 2017).
West Virginia’s water quality standards include two narrative water quality criteria, which
are designed to protect uses of West Virginia’s streams related to aquatic life. Those criteria
provide:
3.2. No sewage, industrial wastes or other wastes present in any of the waters of the
state shall cause therein or materially contribute to any of the following conditions
thereof:
...
3.2.e. Materials in concentrations which are harmful, hazardous or toxic to man,
animal or aquatic life;
...
3.2.i. Any other condition, including radiological exposure, which adversely alters
the integrity of the waters of the State including wetlands; no significant adverse

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impact to the chemical, physical, hydrologic, or biological components of aquatic
ecosystems shall be allowed.
W. Va. Code R. §§ 47-2-3.2.e–3.2.i.
Coal mines are also subject to regulation under the SMCRA, which prohibits any person
from engaging in or carrying out surface coal mining operations without first obtaining a permit
from the Office of Surface Mining Reclamation and Enforcement (“OSMRE”) or an authorized
state agency. 30 U.S.C. §§ 1211, 1256, 1257. A state may receive approval to administer a staterun 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.
B. Factual Background
This controversy concerns discharges from a surface mine along the southern portion of
the Leatherwood Creek watershed. The mine at issue, Fola’s Monoc #2 Surface Mine, is located
in Clay and Nicholas Counties, West Virginia and is situated on the other side of Leatherwood
Creek from Fola’s Surface Mine No.2 and near Fola’s Surface Mine No. 4A and No. 6, all situated
along Leatherwood Creek. Stipulation, ¶ 1, ECF No. 48. The latter three mines were the subject of
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prior litigation between Plaintiffs, save the West Virginia Rivers Coalition, and Fola. See Ohio
Valley Envtl. Coal. v. Fola Coal Co., LLC, 120 F. Supp. 3d 509 (S.D. W. Va. 2015). In that case
this Court found that Fola violated it CWA and SMCRA permits for the No. 2 and No. 6 mines by
discharging highly conductive water into two tributaries of Leatherwood Creek. Id. at 544–46.
The Monoc #2 mine area contains two valley fills. Valley fill #1 partially fills Elick Hollow
which drains into Pond #1 and then from Outlet 005 into Elick Hollow of Leatherwood Creek.
Stipulation, ¶ 2. Valley fill #2 partially fills Shanty Branch which drains into Pond #2 and then
from Outlet 011 into Shanty Branch of Leatherwood Creek. Id.
Defendant’s mining activities at the Monoc #2 mine are regulated under West Virginia
Surface Mining Permit S6019-89 and WV/NPDES Permit WV1009290. Id. ¶¶ 4, 5. Both permits
were transferred from Vandalia Resources to Fola in 2002 in the case of the former and 2004 for
the latter. WVDEP reissued WV/NPDES Permit WV1009290 in April 2013. Id. ¶ 5. It limits
discharges from Outlets 005 and 011. Id. Outlet 005 is the only point source in Elick Hollow and
Outlet 011 is the only point source in Shanty Branch. Id.
Before mining began, Fola reported that conductivity in Elick Hollow measured 35 µS/cm
while conductivity in Shanty Branch measured 44 µS/cm. Id. ¶ 7. After mining began Fola
measured levels of conductivity at Outlets 005 and 011 and at instream monitoring points in
Leatherwood Creek. Id. ¶ 8. From 1992 to 2000 Fola measured highly conductive discharges of
water from Outlets 005 and 011. Id. (showing discharges from Outlets 005 and 011 consistently
ranging from 1000 µS/cm up to 4000 µS/cm.). Instream levels of conductivity in Leatherwood
Creek downstream from Outlets 005 and 011 were also extremely high. Id. (showing instream
conductivity consistently ranging from approximately 500 µS/cm to 3000 µS/cm with a general
trend toward increasing conductivity over time). From 2008 to the present Fola has measured

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conductivity at Outlets 005 and 011 consistently ranging from approximately 1000 µS/cm to
approximately 2000 µS/cm. Id. ¶ 9.
Plaintiffs moved for partial summary judgment on jurisdictional issues and general
causation. Pls.’ Mot. for Part. Summ. J., ECF No. 49, see also Pls.’ Mem. Supp. Mot. Part. Summ.
J., ECF No. 50. Plaintiffs assert that they have standing as a matter of law through their members
James Tawney, Cindy Rank, and Angie Rosser. Id. Plaintiffs also contend that they have met the
statutory requirements for jurisdiction under the CWA and SMCRA, and that Fola is estopped
from relitigating this Court’s prior findings that ionic pollution as measured by conductivity meets
the general causation element of liability under both the CWA and SMCRA. Fola tendered a tepid
response to Plaintiffs’ motion. Response, ECF No. 53. Fola, in a footnote, takes no position on
whether Plaintiffs have standing, only reminding the Court that Plaintiffs have the burden of
proving standing, and it did not challenge Plaintiffs assertion that they have met the statutory
requirements for suit. Id. Fola’s response merely attempts to narrow the scope of Plaintiffs’
estoppel argument such that it is only estopped from relitigating general causation of ionic
pollution on stream impairment.
II.

LEGAL STANDARD

To obtain summary judgment, the moving party must show that there is no genuine issue
as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a). In considering a motion for summary judgment, the Court will not “weigh the
evidence and determine the truth of the matter.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249 (1986). Instead, the Court will draw any permissible inference from the underlying facts in
the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio

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Corp., 475 U.S. 574, 587-88 (1986).
Although the Court will view all underlying facts and inferences in the light most favorable
to the nonmoving party, the nonmoving party nonetheless must offer some “concrete evidence
from which a reasonable juror could return a verdict in his favor.” Anderson, 477 U.S. at 256.
Summary judgment is appropriate when the nonmoving party has the burden of proof on an
essential element of his or her case and does not make, after adequate time for discovery, a showing
sufficient to establish that element. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). The
nonmoving party must satisfy this burden of proof by offering more than a mere “scintilla of
evidence” in support of his position. Anderson, 477 U.S. at 252.
“‘[W]here the moving party has the burden—the plaintiff on a claim for relief or the
defendant on an affirmative defense—his showing must be sufficient for the court to hold that no
reasonable trier of fact could find other than for the moving party.’” Proctor v. Prince George’s
Hosp. Ctr., 32 F. Supp. 2d 820, 822 (D. Md. 1998) (quoting Calderone v. United States, 799 F.2d
254, 259 (6th Cir. 1986)). “Thus, if the movant bears the burden of proof on an issue, . . . he must
establish beyond peradventure all of the essential elements of the claim or defense to warrant
judgment in his favor.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986). Having
discussed the standard for review of motions for summary judgment, the Court now turns to the
parties’ arguments concerning standing.
III. JURISDICTIONAL ISSUES
A. Constitutional Standing Requirements
In order to bring any action in federal court, a plaintiff must have standing—that is, a
plaintiff must have a sufficient personal stake in the outcome of the matter being litigated to make
it justiciable under Article III of the Constitution. See Friends of the Earth, Inc. v. Gaston Copper

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Recycling Corp. (“Gaston Copper I”), 204 F.3d 149, 153 (4th Cir. 2000); see also U.S. Const. art.
III (restricting federal courts to adjudicating “cases” and “controversies”). In order to satisfy the
minimum constitutional requirements for standing, an individual plaintiff must demonstrate:
(1) [he] has suffered an “injury in fact” that is (a) concrete and particularized and
(b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly
traceable to the challenged action of the defendant; and (3) it is likely, as opposed
to merely speculative, that the injury will be redressed by a favorable decision.
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000) (citing
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)). In environmental cases, “a plaintiff
need only show that he used the affected area, and that he is an individual ‘for whom the aesthetic
and recreational values of the area [are] lessened’ by the defendant’s activity.” Piney Run Pres.
Ass’n v. Cnty. Comm’rs, 268 F.3d 255, 263 (4th Cir. 2001) (quoting Sierra Club v. Morton, 405
U.S. 727, 735 (1972)). Furthermore, “[t]he relevant showing for purposes of Article III standing .
. . is not injury to the environment but injury to the plaintiff.” Laidlaw, 528 U.S. at 181.
As this Court explained in OVEC v. Maple Coal Company, a court is not required to
determine the merits of the environmental violations alleged when deciding if standing exists. 808
F. Supp. 2d 868, 882 (S.D. W. Va. 2011) (citing Laidlaw, 528 U.S. at 181). “What [standing] does
require is a demonstration that if the allegations of Clean Water Act violations are true, the impacts
of the alleged violations are felt in an area with which the plaintiffs have ‘a direct nexus.’” Id.
(quoting Friends of the Earth, Inc. v. Gaston Copper Recycling Corp. (“Gaston Copper II”), 629
F.3d 387, 395 (4th Cir. 2011)). Plaintiffs “may rely on circumstantial evidence such as proximity
to polluting sources, predictions of discharge influence, and past pollution to prove both injury in
fact and traceability.” Gaston Copper I, 204 F.3d at 163. To require more would contravene the
otherwise “straightforward Clean Water Act issue of whether [the defendant] has violated its
permit limitations,” thereby “throw[ing] federal legislative efforts to control water pollution into a
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time warp by judicially reinstating the previous statutory regime in the form of escalated standing
requirements.” Id. at 163–64.
When the plaintiff in question is an organization, that organization “has standing to sue on
behalf of its members when ‘(a) its members would otherwise have standing to sue in their own
right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither
the claim asserted nor the relief requested requires the participation of individual members in the
lawsuit.’” Am. Canoe Ass’n, Inc. v. Murphy Farms, Inc., 326 F.3d 505, 517 (4th Cir. 2003)
(quoting Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977)).
B. Application of Constitutional Standing Requirements
Plaintiffs claim to satisfy standing requirements through their members James Tawney,
Angie Rosser, and Cindy Rank. Mr. Tawney and Ms. Rank are members of the West Virginia
Highlands Conservancy, the Ohio Valley Environmental Coalition, and the Sierra Club. Pls.’ Ex.
4 ¶¶ 2-3, ECF No. 49-4; Pls’ Ex. 5 ¶¶ 2, 5, 7, ECF No. 49-5. Ms. Rosser is a member of the West
Virginia Rivers Coalition. Pls.’ Ex. 6 ¶ 2, ECF No. 49-6. Plaintiffs’ members are not simply
members of environmental advocacy groups. Each member that submitted an affidavit are West
Virginians who reside in communities near the areas allegedly affected by Fola’s discharges. Like
many of their neighbors, they value the natural beauty and resources of West Virginia, such as our
streams and rivers and, like many of their fellow citizens, they have joined local organizations
dedicated to preserving those resources.
As explained below, the Court finds that through the declarations of Mr. Tawney, Ms.
Rank, and Ms. Rosser, Plaintiffs readily satisfy standing requirements.
1. Injury in fact
James Tawney grew up in Clay County, West Virginia. Pls.’ Ex. 4 ¶ 1, ECF No. 49-4.
Throughout his childhood and to this day he has visited and fished in the Elk River, into which
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Leatherwood Creek flows. Id. ¶¶ 9–12. Due to pollution from Fola’s mining operations, Mr. Tawny
has stopped fishing at the confluence of Leatherwood Creek and the Elk River. Id. ¶ 10. In addition,
though Mr. Tawney previously fished in Leatherwood Creek, he has since stopped fishing the
creek out of concern about pollution from Defendant’s surface mine operations. Id. Mr. Tawney
expressed particular concern over the high conductivity discharges from these mines. Id. ¶¶ 11–
12. In addition to recreational visits, Mr. Tawney also visits Leatherwood Creek when visiting his
stepmother’s nearby grave. Id. ¶¶ 13–14. Mr. Tawny explained, “[i]t is insulting that the peaceful
setting chosen for my stepmother’s eternal rest is disturbed by the destruction of the environment
in the area—including the pollution of the nearby streams.” Id. ¶ 14.
Like Mr. Tawney, Ms. Rank has also been a long-standing visitor to the Elk River,
regularly traveling along the river since the 1970s. Pls.’ Ex. 5 ¶ 12–13, ECF No. 49-5. Ms. Rank
has been visiting Leatherwood Creek since 2003 or 2004, but her enjoyment of the creek has been
limited by her knowledge of pollution from Defendant’s surface mine operations. Id. ¶¶ 15–26.
Ms. Rosser lives along the Elk River about twelve miles downstream from the confluence
of the Elk and Leatherwood Creek. Pls.’ Ex. 6 ¶ 4, ECF No. 49-6. Ms. Rosser has capitalized on
her proximity to the river by regularly swimming in, and boating and floating on, the Elk. Id. ¶ 5.
Recently, however, she has stopped fishing on the Elk due to the pollution discharged from Fola
mining operations along Leatherwood Creek and refuses to swim near the confluence of the Elk
and Leatherwood Creek because of the pollution. Id. ¶¶ 11, 13. She would resume fishing on the
Elk, including near the mouth of Leatherwood Creek, were pollution to abate. Id. ¶ 14. Ms. Rosser
plans to continue to use the Elk and visit the mouth of Leatherwood Creek. Id. ¶ 15.
Mr. Tawney, Ms. Rank, and Ms. Rosser all use the area affected by Defendant’s discharges
and all have suffered the loss of aesthetic and recreational value. In summary, Ms. Rank, Mr.

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Tawney, and Ms. Rosser have demonstrated a concrete and actual harm to their aesthetic and
recreational interests as a result of ionic pollution in Leatherwood Creek.
2. Traceability
Plaintiffs’ injuries are fairly traceable to Defendant’s discharges of ionic pollution in
alleged violation of its WV/NPDES Permit because the declarants claim that their injuries resulted
from elevated pollution in the same waterway into which Defendant discharges pollutants. OVEC
v. Marfork Coal Co., Inc., No. 5:12-cv-1464, 2013 WL 4509601, at *5 (S.D. W. Va. Aug. 23,
2013). Defendant does not argue that the areas used by Plaintiffs’ declarants in Leatherwood Creek
are not affected by its mining and discharges. Therefore, traceability has been shown.
3. Redressability
The Court finds that Plaintiffs also satisfy the final standing element, redressability.
Plaintiffs seek injunctive relief requiring Defendant to reduce its discharge of ionic pollution to
comply with the terms of its permit. This relief would provide redress for declarants’ injuries by
reducing the amount of ionic pollution in Leatherwood Creek. It is not necessary that such relief
completely relieve every injury suffered by Mr. Tawney and Ms. Rank; relieving the impacted
waters from the ionic pollution, but not all pollution, is adequate redress for standing purposes.
4. Organizational Standing
The Court finds that Plaintiffs have constitutional standing. Declarants are members of all
of the plaintiff organizations. They have demonstrated: (1) injuries in fact which are (2) fairly
traceable to Defendant’s alleged violations and which (3) are able to be redressed by a favorable
decision in this case. These three declarants support Plaintiffs’ organizational standing because,
(A) as individual members, they would have standing to sue in their own right, (B) the interests
Plaintiffs seek to protect are germane to Plaintiffs’ overall purpose to conserve and preserve the
environment and natural resources, and (C) neither the claims asserted nor the relief requested
requires the participation of individual members.
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C. Statutory Requirements for Citizen Suit
Under the CWA and SMCRA, no citizen suit may be commenced prior to the provision of
sixty days' notice to the alleged violator, the Administrator of the EPA (for CWA citizen suits) or
the Secretary of the Department of the Interior (for SMCRA citizen suits), and the State in which
the alleged violation occurs. 30 U.S.C. § 1270(b)(1)(A); 33 U.S.C. § 1365(b)(1)(A). The notice
must provide:
sufficient information to permit the recipient to identify the specific standard,
limitation, or order alleged to have been violated, the activity alleged to constitute a
violation, the person or persons responsible for the alleged violation, the location of the
alleged violation, the date or dates of such violation, and the full name, address, and
telephone number of the person giving notice.
40 C.F.R. § 135.3(a) (notice requirement for CWA citizen suit); see also 30 C.F.R. § 700.13(e)
(notice requirement for SMCRA citizen suit). Providing such notice “is a mandatory condition
precedent to filing suit under [the CWA].”Gaston Copper II, 629 F.3d at 399 (citing Hallstrom v.
Tillamook Cnty., 493 U.S. 20, 31 (1989)). “Without adequate notice, the Court does not have
subject matter jurisdiction to hear the case.” Assateague Coastkeeper v. Alan & Kristin Hudson
Farm, 727 F. Supp. 2d 433, 437 (D. Md. 2010) (citation omitted). The purpose of the notice is to
“allow a potential defendant to identify its own violations and bring itself into compliance
voluntarily,” Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of New York, 273 F.3d
481, 488 (2d Cir. 2001) (citations omitted), and to “[allow] Government agencies the opportunity
to take responsibility to enforce the environmental regulations,” Assateague Coastkeeper, 727 F.
Supp. 2d at 437 (citing Hallstrom, 493 U.S. at 29). Accordingly,
[A]s long as a notice letter is reasonably specific as to the nature and time of the
alleged violations, the plaintiff has fulfilled the notice requirement. The letter does
not need to describe every detail of every violation; it need only provide enough
information that the defendant can identify and correct the problem.
San Francisco Baykeeper, Inc. v. Tosco Corp., 309 F.3d 1153, 1155 (9th Cir. 2002). “The
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sufficiency of the plaintiffs' notice letter must be assessed based on the facts that existed” at the
time notice was provided. Gaston Copper II, 629 F.3d at 401.
The parties do not dispute that Plaintiffs have satisfied their statutory obligation to provide
sixty days' notice. Plaintiffs sent a letter postmarked November 12, 2014, providing notice of their
intent to sue unless Fola complied with its WV/NPDES permit. Pls.’ Ex. 2, Decl. of Michael
Becher, ECF No. 49-2. Plaintiffs filed the pending Complaint on February 2, 2015, over sixty days
later. Compl., ECF No. 1. Accordingly, the Court further finds that Plaintiffs have satisfied the
statutory citizen suit notice requirements.
IV.

COLLATERAL ESTOPPEL

Plaintiffs contend that Fola should be collaterally estopped from relitigating the issue of
the general causation of impairment by high levels of conductivity. To support their argument they
point to two previous cases decided by this Court that both held that high conductivity associated
with surface mining was a general cause of impairment. Pls.’ Mem. Supp. Mot. Part. Summ. J. 13,
ECF No. 50; see also Ohio Valley Envtl. Coal. v. Fola Coal Co., LLC, 82 F. Supp. 3d 673, 686–
96 (S.D. W. Va. 2015) (Stillhouse Branch), aff’d, 845 F.3d 133 (4th Cir. 2017); Ohio Valley Envtl.
Coal. v. Fola Coal Co., LLC, 120 F. Supp. 3d 509, 515–37 (S.D. W. Va. 2015) (Leatherwood
Creek). Fola does not categorically oppose Plaintiffs’ motion. Fola does not dispute that high levels
of conductivity generally cause impairment; that is, high levels of conductivity may cause or
materially contribute to impairment. Fola disputes any contention in Plaintiffs’ briefing that asserts
that high levels of conductivity caused impairment in this case and that any particular level of
conductivity necessarily causes impairment. Fola’s critiques of Plaintiffs’ motion, at bottom, imply
concerns over specific causation. The Court does not take Plaintiffs’ motion to move for anything
more than to preclude the relitigation of the general causation element. Thus, it seems Fola’s

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concerns are unfounded and both parties agree that general causation need not be relitigated in this
case. Nonetheless, the Court will make an independent determination whether general causation
has already been established by this Court’s prior rulings.
“Collateral estoppel forecloses the relitigation of issues of issues of fact or law that are
identical to issues which have been actually determined and necessarily decided in prior litigation
in which the party against whom issue preclusion is asserted had a full and fair opportunity to
litigate.” Sedlack v. Braswell Servs. Grp., Inc., 134 F.3d 219, 224 (4th Cir. 1998) (quoting Ramsay
v. INS, 14 F.3d 206, 210 (4th Cir. 1994)). The proponent of collateral estoppel must establish:
(1) the issue sought to be precluded is identical to one previously litigated; (2) the
issue must have been actually determined in the prior proceeding; (3) determination
of the issue must have been a critical part of the decision in the prior proceeding;
(4) the prior judgment must be final and valid; and (5) the party against whom
estoppel is asserted must have had a full and fair opportunity to litigate the issue in
the previous forum.
Id. The parties largely agree that general causation in this case has been established by this Court’s
two prior cases addressing conductivity from surface mine runoff in Appalachian streams. Indeed,
the general causation issue meets all five elements of collateral estoppel.
The issue sought to be precluded here is identical to two previous cases decided by this
Court. In Ohio Valley Environmental Coalition, Inc. v. Fola Coal Co., LLC the plaintiffs brought
a case challenging Fola’s compliance with NPDES permits for Stillhouse Branch. 82 F. Supp. 3d
at 676. The plaintiffs asserted that Fola breached the terms of its permits by discharging highly
conductive water into Stillhouse Branch. Id. In order to prevail the plaintiffs were obliged to prove
that high conductivity associated with surface mining activity is a general cause of impairment. Id.
at 686. This Court found, after a three-day bench trial, that the plaintiffs demonstrated by a
preponderance of the evidence that high levels of conductivity associated with surface mining can
cause impairment. Id. at 696.
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The Court again took up the general causation issue in Ohio Valley Environmental
Coalition v. Fola Coal Co., LLC. 120 F. Supp. 3d 509. There plaintiffs brought another challenge
to Fola’s NPDES permits permitting discharges into Leatherwood Creek and certain tributaries
that flow into Leatherwood Creek along its southern bank. Id. at 513–14. Leatherwood Creek and
two other tributaries (Shanty Branch and Elick Hollow) that flow into Leatherwood along its
northern bank are the subject of this case. The plaintiffs again contended that Fola had violated the
terms of its permits by discharging highly conductive water into Leatherwood Creek and its
tributaries. Id. After a three-day bench trial the Court found “[o]n the basis of [an] outstanding
collection of peer-reviewed studies, the Court finds that the link between surface mining and
biological impairment of downstream waters has been sufficiently—if not definitively—
established in the scientific literature.” Id. at 511, 537. Specifically the Court found “Plaintiffs
proved by a preponderance of the evidence that conductivity, as a measure of a consistent mix of
ions typical of alkaline mine drainage in the Appalachian region, may cause or materially
contribute to biological impairment to aquatic life . . . .” Id. at 515.
The issue of general causation here has all the same features as the general causation issues
already determined by this Court. This case involves allegedly highly conductive discharges from
Fola’s surface mining operation into tributaries of Leatherwood Creek along its northern bank.
Indeed, this Court has already determined general causation for highly conductive discharges into
Leatherwood Creek. The case before the Court now is simply challenging discharges into
tributaries on the other side of Leatherwood from the earlier Leatherwood case. Defendants do not
protest that this case raises any general causation issues that are factually or legally distinct from
those already decided. Similarly, there is nothing in the record that would lead the Court to
determine that the general causation issue raised here is not the same as the general causation issue

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already proved in the two prior cases addressing highly conductive mine drainage as measured by
a consistent mix of ions typical of alkaline mine drainage in the Appalachian region.
In both the Leatherwood Creek case and the Stillhouse Branch case, the Court made
specific factual findings after hearing testimony from dueling experts and reviewing large
quantities of scientific data about general causation. See id. at 515–37; Ohio Valley Envtl. Coal.,
82 F. Supp. 3d at 686–96. In both cases the Court actually determined that a consistent mix of ions
typical of alkaline mine drainage in the Appalachian region as measured by conductivity can cause
impairment. Id. The general causation determination was a threshold issue in each case; that is,
had plaintiffs in either case failed to prove that it is possible that conductivity can cause
impairment, plaintiffs would not have been able to prove either of their cases. Both the Stillhouse
case and Leatherwood case are valid final judgments, and Fola had a full and fair opportunity to
litigate the issue twice and did so vigorously in each case. Accordingly, collateral estoppel applies
to the general causation issue in this case. Fola had a full and fair opportunity to litigate the issue
in two prior cases, and the Court actually decided this identical threshold issue in a valid final
judgment after hearing extensive testimony and reviewing mountains of scientific data.

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V.

CONCLUSION

For the foregoing reasons the Court GRANTS Plaintiffs’ Motion for Partial Summary
Judgment. ECF No. 49.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented parties.

ENTER:

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April 4, 2017