Ohio Valley Environmental Coalition et al v. Elk Run Coal Company, Inc. et al

Filing 110

MEMORANDUM OPINION AND ORDER The Court finds that Plaintiffs have established statutory jurisdiction under both the Clean Water Act and the Surface Mining Control and Reclamation Act; the Court Finds that Plaintiffs have established, by a preponderan ce of the evidence, that each Defendant has committed at least one violation of its permits by discharging into Laurel Creek or Robinson Fork high levels of ionic pollution, 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; the Court also Finds that Plaintiffs have established statutory jurisdiction under both the CWA and the SMCRA. Signed by Judge Robert C. Chambers on 6/4/2014. (cc: attys; any unrepresented party) (skm) (Modified on 6/4/2014 to remove and replace page one pursuant to the 111 Order) (skh).

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

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

CIVIL ACTION NO. 3:12-0785

ELK RUN COAL COMPANY, INC. and
ALEX ENERGY, INC.,
Defendants.

MEMORANDUM OPINION AND ORDER
On December 3-4, 2013, the Court held a trial in this case regarding jurisdiction and
liability,1 and the parties timely conducted post-trial briefing. As explained below, the Court
FINDS that Plaintiffs have established statutory jurisdiction under both the Clean Water Act and
the Surface Mining Control and Reclamation Act. The Court further FINDS that Plaintiffs have
established, by a preponderance of the evidence, that each Defendant has committed at least one
violation of its permits by discharging into Laurel Creek or Robinson Fork high levels of ionic
pollution, 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
1

Pursuant to this Court‘s July 13, 2012, 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.

Pollution Control Act (“Clean Water Act” or “CWA”) and the Surface Mining Control and
Reclamation Act (“SMCRA”). Plaintiffs allege that Defendants Elk Run Coal Company, Inc.,
(“Elk Run”) and Alex Energy, Inc., (“Alex Energy”) 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., No. CIV.A. 3:12-0785, 2014 WL 29562, at *3, 6 (S.D. W. Va. Jan. 3, 2014).
Coal mines are also subject to regulation under the SMCRA, which prohibits any person

2

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.

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II.

CWA AND SMCRA CITIZEN SUIT REQUIREMENTS

As the Court ruled in its November 26, 2013, Memorandum Opinion and Order, ECF No.
87, Plaintiffs have established constitutional standing. However, that Order did not address the
three statutory requirements which must be established in order to properly bring a citizen’s suit
under the CWA and the SMCRA. Thus, the Court must address these requirements now.
Under the CWA and the SMCRA, no citizen suit may be commenced prior to the provision
of sixty days’ notice to the alleged violator, to the Administrator of the EPA (for CWA citizen
suits) or the Secretary of the Department of the Interior (for SMCRA citizen suits), and to the state
in which the alleged violation occurs. 30 U.S.C. § 1270(b)(1)(A); 33 U.S.C. § 1365(b)(1)(A).
Additionally, no such suit may be commenced if the state, the Administrator, or the Secretary has
commenced and is diligently prosecuting its own civil action against the alleged violator to require
the same compliance which is the aim of the citizen suit. See 30 U.S.C. § 1270(b)(1)(B); 33 U.S.C.
§ 1365(b)(1)(B); OVEC v. Maple Coal Co., 808 F. Supp. 2d 868, 883 (S.D. W. Va. 2011).
Plaintiffs sent a letter to the appropriate recipients which provided the necessary details for
valid notice of suit on January 11, 2012. See Joint Exs.2 1-3. This lawsuit was commenced over
sixty days later, on March 20, 2012. See Compl., ECF No. 1. Plaintiffs represented at trial that they
have received no information that any regulators—state or federal—have filed an action regarding
these violations. See Tr. at 16. Defendants do not challenge Plaintiffs’ contention that they have
met the sixty days’ notice and lack of diligent prosecution requirements. The Court thus finds that
the CWA’s and the SMCRA’s notice and lack of diligent prosecution requirements have been met
by Plaintiffs in this case.

2

All exhibits cited throughout this Memorandum Opinion and Order are exhibits admitted at trial.

4

The CWA’s citizen suit provision also states,
[A]ny citizen may commence a civil action on his own behalf . . . against any
person . . . who is alleged to be in violation of (A) an effluent standard or limitation
under this chapter or (B) an order issued by the Administrator or a State with
respect to such a standard or limitation . . . .
33 U.S.C. § 1365(a)(1) (emphasis added). The SMCRA’s citizen suit provision states,
[A]ny person having an interest which is or may be adversely affected may
commence a civil action on his own behalf to compel compliance with this chapter
. . . against any . . . person who is alleged to be in violation of any rule, regulation,
order or permit issued pursuant to this subchapter . . . .
30 U.S.C. § 1270(a)(1) (emphasis added). The Supreme Court has interpreted the phrase “to be in
violation” in this context to require “that citizen-plaintiffs allege a state of either continuous or
intermittent violation—that is, a reasonable likelihood that a past polluter will continue to pollute
in the future.” Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc. (“Gwaltney III”), 484
U.S. 49, 57 (1987). 3 “[A] good-faith allegation [of continuous or intermittent violation] . . .
suffice[s] for jurisdictional purposes . . . .” Id. at 65.
The issue of what evidence must be shown for jurisdictional purposes is distinct from what
evidence must be shown for a defendant to ultimately be held liable for violations of the CWA and
the SMCRA. See Chesapeake Bay Found., Inc. v. Gwaltney of Smithfield, Ltd. (“Gwaltney IV”),
844 F.2d 170, 171 (4th Cir. 1988) (drawing a distinction between making “a good faith allegation
of ongoing violation sufficient to maintain jurisdiction” and “prov[ing] [an] allegation of
continuous or intermittent violation[], as required in order to prevail”). The Supreme Court
specifically rejected the proposition that “citizen-plaintiffs must prove their allegations of ongoing
noncompliance before jurisdiction attaches.” Gwaltney III, 484 U.S. at 64. Good-faith allegations,
3

The Gwaltney line of cases is highly instructive for the Court’s deliberations here. For the purposes of this case, it is
useful for the Court to refer to several of the cases in this line: 1) the district court’s original decision, 611 F. Supp.
1542 (E.D. Va. 1985) (“Gwaltney I”); 2) the Fourth Circuit’s affirmance, 791 F.2d 304 (4th Cir. 1986) (“Gwaltney
II”); 3) the Supreme Court’s decision on appeal from the Fourth Circuit, 484 U.S. 49 (1987) (“Gwaltney III ”); and 4)
the Fourth Circuit’s decision on remand from the Supreme Court, 844 F.2d 170 (4th Cir. 1988) (“Gwaltney IV”).

5

not definitive proof, suffice for jurisdictional purposes. Id. at 65. To meet the jurisdictional
requirements, Plaintiffs must merely show that, at the time they filed suit, they had a good-faith
belief that Defendants were in continuous or intermittent violation of the CWA and the SMCRA.
In a jurisdictional sense, then, this good-faith belief is an element of each of Plaintiffs’ claims.
Accordingly, the Court must consider what constitutes a sufficient good-faith belief for
jurisdictional purposes. In the district court case which eventually gave rise to the Supreme Court’s
Gwaltney III decision, the Eastern District of Virginia considered this question:
A useful analogy [for understanding good-faith belief] is the manner in which the
federal courts treat the jurisdictional amount requirement in diversity cases. . . .
In diversity cases, the question whether the jurisdictional amount is satisfied—and
whether the court, ultimately, has jurisdiction—is not answered by whether the
plaintiff ultimately recovers in excess of $10,000. Rather, the issue is whether the
amount plaintiff stated in the original claim satisfies the amount, and is made in
good faith. . . . [T]he test of good faith is whether it appears to be a legal certainty
that the jurisdictional fact is not satisfied.
Chesapeake Bay Found. v. Gwaltney of Smithfield, Ltd. (“Gwaltney I”), 611 F. Supp. 1542, 1549
n.8 (E.D. Va. 1985) (citations omitted) (internal quotation marks omitted), aff’d, 791 F.2d 304 (4th
Cir. 1986) (“Gwaltney II”), vacated on different grounds in Gwaltney III, 484 U.S. 49. In
Gwaltney I, the district court found that “there was no certainty . . . —legal, factual, or
otherwise—that [the defendant’s] system would correct one of the two major violation problems
for which this suit was brought—until nearly one year after the suit was filed.” Id. In view of that
finding, that district court ruled that the Gwaltney I plaintiffs had sufficiently pled a violation in
good faith.
In the Complaint, Plaintiffs allege that, since mining began and through to the present day,
Elk Run’s discharges into Laurel Creek from the East of Stollings Surface Mine and the White
Castle No. 1 Surface Mine have resulted in extremely high conductivity levels in the creek, usually

6

exceeding 1,000 μS/cm and frequently exceeding 3,000 μS/cm, when substantial and increasing
aquatic life impacts occur as conductivity increases beyond 300 μS/cm. See Compl. ¶¶ 32-43.
They also allege that the EPA measured a West Virginia Stream Condition Index (“WVSCI”)4
score of 58.76—below the biological impairment threshold of 68—in Laurel Creek in 2007. See
id. ¶ 41.
Additionally, Plaintiffs allege that, since mining began and through the present day, Alex
Energy’s discharges into Robinson Fork from the Robinson North Surface Mine and the Wildcat
Surface Mine have also resulted in extremely high conductivity levels in the stream, usually
exceeding 1,000 μS/cm and frequently exceeding 3,000 μS/cm. See id. ¶¶ 44-55. They further
allege that the WVDEP classified Robinson Fork as biologically impaired due to ionic stress in
2008 and that, from 1998 to 2008, the WVDEP and the EPA measured the following WVSCI
scores below the biological impairment threshold in Robinson Fork: 59.95 (1998), 50.95 (2003),
24.75 (2007), 61.78 (2007), and 61.53 (2008). See id. ¶ 52.
Defendants do not challenge Plaintiffs’ contention that they have sufficiently alleged, in
good faith, that Defendants are in continuous or intermittent violation of the CWA and the
4

WVSCI is a bioassessment tool which was used by the WVDEP from 2002 through 2010 to determine whether West
Virginia streams were biologically “impaired”—meaning that they were waters for which numeric effluent limitations
were not stringent enough to maintain the biological narrative water quality standards embodied in West Virginia
Code of State Rules § 47-2-3.2.e and -3.2.i—under Section 303(d) of the CWA. See 33 U.S.C. § 1313(d)(1)(A); Letter
from Shawn M. Garvin, Regional Administrator, EPA, to Randy C. Huffman, Secretary, WVDEP, at 1 (Mar. 25,
2013) (“Mar. 25, 2013, Letter from EPA to WVDEP”), Joint Ex. 118 at JE 293; WVDEP Division of Water and Waste
Management, 2012 Draft West Virginia Integrated Water Quality Monitoring and Assessment Report 15-16 (2012),
Joint Ex. 119 at JE 316-317. The WVDEP explained how it used WVSCI to find a stream biologically impaired in its
2010 Section 303(d) list of impaired waters:
Streams are listed as biologically impaired based on a survey of their benthic macroinvertebrate
community. Benthic macroinvertebrate communities are rated using a multimetric index developed
for use in wadeable streams of West Virginia. [WVSCI] is composed of six metrics that were
selected to maximize discrimination between streams with known impairments and reference
streams. . . . In general terms, all metric values were converted to a standard 0 (worst) to 100 (best)
point scale. The six standardized metric scores were then averaged for each benthic sample site to
come up with a final index score ranging from 0.0 to 100.0. Using the distribution of scores from all
sites that are considered reference sites, an impairment threshold of 68.0 was established. If a stream
site received a WVSCI score greater than 68.0, it was considered to be unimpaired.
WVDEP Division of Water and Waste Management, 2010 West Virginia Integrated Water Quality Monitoring and
Assessment Report 14 (2010), Joint Ex. 120 at JE 362.

7

SMCRA. The Court thus finds that both the CWA’s and the SMCRA’s requirement that the
Complaint contain a good-faith allegation of continuous or intermittent violation against each
Defendant has been met by Plaintiffs in this case.
III.
A.

LIABILITY

Legal Issues
Before making any findings regarding liability, the Court must address arguments made by

Defendants which, according to Defendants, bar this Court from ruling in favor of Plaintiffs or, in
the alternative, limit and direct this Court’s analysis.
1.

Effectively creating a conductivity water quality effluent limit

Defendants argue that this Court cannot rule in Plaintiffs’ favor because doing so would
effectively create a conductivity water quality effluent limit—precisely the action which a federal
district court, in National Mining Association v. Jackson, 880 F. Supp. 2d 119, 137-38 (D.D.C.
2012), ruled to be beyond the authority of the EPA, despite the EPA’s otherwise broad powers
under the CWA.
First, the Court notes that the operative document in Jackson was the EPA’s July 21, 2011,
Final Guidance document, entitled “Final Memorandum: Improving EPA Review of Appalachian
Surface Coal Mining Operations Under the Clean Water Act, National Environmental Policy Act,
and the Environmental Justice Executive Order.” See id. at 127. In contrast, the document which
Plaintiffs referenced at trial and to which Defendants here object is an entirely different document,
released by the EPA in March 2011 and entitled “A Field-Based Aquatic Life Benchmark for
Conductivity in Central Appalachian Streams” (“EPA’s Benchmark”). Pls.’ Ex. 9. In Jackson,
through its Final Guidance, the EPA exceeded its authority under the CWA and the SMCRA by
effectively establishing a region-wide water quality standard. See Jackson, 880 F. Supp. 2d at 127,

8

138. However, here, in its Benchmark, the EPA is acting within the core of its authority by
publishing a scientific study, within its area of expertise, regarding the causal relationship between
conductivity levels and biological impairment. Cf. Envtl. Def. Ctr., Inc. v. U.S. E.P.A., 344 F.3d
832, 869 (9th Cir. 2003) (“We treat [the] 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.”)
Importantly, unlike Jackson, this case does not result from a direct assertion of regulatory
authority by the EPA. Instead, this case is a citizen suit, brought under 33 U.S.C. § 1365, which
alleges that Defendants violated a term in their permits by discharging materials which have
caused or materially contributed to a significant adverse impact to the chemical or biological
components of aquatic ecosystems, in violation of West Virginia’s narrative water quality
standards. The EPA’s Benchmark is not relied upon by Plaintiffs to demonstrate that the EPA set a
particular effluent limit which, if exceeded, automatically results in a violation of water quality
standards, and the Court will not treat it as such. Instead, it is used by Plaintiffs as a scientific
study, among others, which supports Plaintiffs’ general causation argument that high conductivity
levels in streams, caused by surface mining, lead to the extirpation of some types of benthic
macroinvertebrates. Thus, Defendants’ comparison of this case to Jackson is inapposite. The
holdings in Jackson simply do not apply to this case.
2.

Deference to the WVDEP’s or the West Virginia Legislature’s interpretations

In the alternative, Defendants argue that this Court must follow the WVDEP’s and/or the
West Virginia legislature’s interpretations and guidance regarding West Virginia’s water quality
standards when analyzing Plaintiffs’ evidence and arguments. Specifically, Defendants argue that
the Court must follow: 1) the WVDEP’s assessment that high conductivity levels do not cause low

9

WVSCI scores, as explained in its August 12, 2010, “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” (“WVDEP’s Guidance”), Joint Ex. 55; 2) the WVDEP’s
instruction, also in its Guidance, that a stand-alone WVSCI score cannot be the sole determinant of
compliance with West Virginia’s narrative water quality standards and that, instead, analysis of the
phrase “significant adverse impact” in the water quality standards requires a holistic approach,
through which the investigator must determine whether a material decline in the overall health of
an aquatic system has occurred; 3) the West Virginia legislature’s instruction, through its passage
of House Concurrent Resolution 111 (“H.C.R. 111”) and of Senate Bill 562 (“S.B. 562”), and the
WVDEP’s instruction, in its Guidance, that this holistic approach requires proof of effects on fish,
not just invertebrates, in order to find a violation; and 4) the WVDEP’s instruction, in its
Guidance, that the proper WVSCI score at which to list a stream as “impaired” under Section
303(d) of the CWA is 60.6, not 68. The Court will address each of these arguments in turn.
a.

The WVDEP’s assessment that high conductivity levels do not cause
low WVSCI scores

Regarding its finding that there is no causative effect between high conductivity and low
WVSCI scores, the WVDEP, in its Guidance, states:
[The] EPA has recently set a numeric limit on conductivity at 500 μS/cm, finding
that conductivity levels below 300 μS/cm generally will not cause a water quality
standard violation and that in-stream conductivity levels above 500 μS/cm are likely
to be associated with adverse impacts that may rise to the level of exceedances of
narrative state water quality standards. However, [the WV]DEP’s data shows that
more than a simple conductivity measurement is necessary to determine the health
of a stream. . . . [A] stream can have a low level of specific conductance and a
WVSCI score firmly within the range for impairment; conversely, a stream can have
a high level of specific conductance and a WVSCI score that indicates the stream is
above the threshold for impairment. WVSCI scores are affected by many factors:
habitat, other uses of the stream and the surrounding land, other pollutants unrelated
to conductivity (e.g. fecal coliform), inter alia. Certain stream reaches simply
cannot attain a “good” WVSCI score because of those factors.
10

...
[The WV]DEP has performed a correlative evaluation of benthic condition and
specific conductance. This evaluation suggests that native aquatic life is protected at
various values and ranges of specific conductance. This finding supports the basic
scientific principle that correlation is not cause and effect.
WVDEP’s Guidance at 5-6 (footnote omitted). At this point in the Guidance, the WVDEP is
explaining its choice to not require a specific numeric limit on conductivity in order to meet the
state’s water quality standards, despite the EPA’s apparent insistence that it do so. Importantly,
here, the WVDEP is not directly interpreting its own regulations or any of the state statutes which
it administers.
The Court can find no basis for substituting the WVDEP’s general judgment that there is
no causative effect between high conductivity and low WVSCI scores for the extensive scientific
evidence in this case which reveals precisely this causative effect.5 The Court’s role in this citizen
suit is to determine whether, despite inaction by the WVDEP, Defendants have been violating their
permits by violating West Virginia’s water quality standards, the nonviolation of which is clearly
required by their permits. See Elk Run Coal Co., Inc., 2014 WL 29562, at *3, 6. Just as the Court
must find a violation if a defendant is exceeding a specific numeric effluent limit in its permit, the
Court must find a violation here if Defendants’ discharges cause or materially contribute to a
significant adverse impact to the chemical or biological components of aquatic ecosystems. W.
Va. Code R. § 47-2-3.2.i. Notably, the U.S. Supreme Court has recognized that the central purpose
of a citizen suit under the CWA is to “permit[] citizens to abate pollution when the government
cannot or will not command compliance.” Gwaltney III, 484 U.S. at 62. The Court will not adopt
5

The strength of this scientific evidence is discussed in more detail in the “General Causation” section of this
Memorandum Opinion and Order. Also discussed in that section is the important fact that the detailed, substantiated,
and rational scientific determinations made by the EPA in its nearly three-hundred page Benchmark fall within that
agency’s special area of expertise; thus, the Court owes deference to those determinations. In contrast, the WVDEP’s
determination in its eight-page Guidance that there is no causative effect between high conductivity and low WVSCI
scores is in direct contradiction with the only scientific evidence—in the form of a graph and a chart—included in the
Guidance. See WVDEP’s Guidance at 6-7. This contradiction is also discussed in more detail in the “General
Causation” section of this Memorandum Opinion and Order.

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the WVDEP’s conclusion—contrary to the finding of the EPA and the weight of the scientific
evidence in this case—that there can be no causative effect between high conductivity and low
WVSCI scores. Instead, the Court will weigh all of the evidence, including the WVDEP’s
Guidance—given that this document was admitted into evidence—, in determining if Defendants
have violated their permits. According any special weight in this process to the WVDEP’s
unsubstantiated finding would be improper.
b.

The WVDEP’s instruction that a stand-alone WVSCI score cannot be
the sole determinant of compliance with the narrative water quality
standards and that proper analysis requires a holistic approach

Regarding the need for a “holistic approach”—and not solely a stand-alone WVSCI
score—in determining whether the state’s narrative water quality standards have been violated, the
WVDEP, in its Guidance, states:
[The] narrative water quality standards . . . state[], in pertinent part, “No significant
adverse impact to the chemical, physical, hydrologic, or biological components of
aquatic ecosystems shall be allowed.”
...
[The WV]DEP has determined that “significant adverse impact” is more than a
change in the numbers or makeup of the benthic macroinvertebrate community in a
segment of a water body downstream from a point source discharge. It is, instead, a
material decline in the overall health of an aquatic ecosystem[, a dynamic complex
of plant, animal, and microorganism communities and their non-living
environment interacting as a functional unit within water]. A goal of the CWA and
the [West Virginia Water Pollution Control Act (“WVWPCA”)] is to protect the
aquatic ecosystem as a whole; it is a holistic standard that requires a holistic
approach to ecosystem assessment. In contrast to numeric water quality criteria,
which can be applied by analysis of samples of water taken at any discharge or
monitoring point in a stream, compliance with a standard that protects the aquatic
ecosystem must be assessed in the broader area comprising the ecosystem. An
ecosystem does not exist at a single point and, accordingly, its health cannot be
assessed at a single point.
...
[WVSCI is] not [a] stand-alone determinant[] of compliance with the narrative
standard.
...
[The WV]DEP continues its existing practice of using WVSCI in addition to
consideration of other factors affecting the aquatic ecosystem to enforce its
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narrative water quality standards. . . . [WVSCI] was specifically designed for
assessment of the biological component of the 47 C.S.R. 2 § 3.2.i narrative criteria
and [is] used as a tool in developing the Impaired Streams List (“303(d) List”) . . . .
...
WVSCI scores are affected by many factors: habitat, other uses of the stream and
the surrounding land, other pollutants unrelated to conductivity (e.g. fecal
coliform), inter alia. Certain stream reaches simply cannot attain a “good” WVSCI
score because of those factors.
...
Where the only impacts to this component of the ecosystem [i.e., the benthic
macroinvertebrate community] are diminished numbers of certain genera of
mayflies, without evidence that this has had any adverse impact of any significance
on the rest of the ecosystem, the State cannot say that there has been a violation of
its narrative standard.
WVDEP’s Guidance at 2, 3 & n.7, 4-6.
It is apparent to the Court that, through its Guidance, the WVDEP intends to interpret the
biologically-based subset of the state’s narrative water quality standards under West Virginia
Code of State Rules § 47-2-3.2. Section 47-2-3.2 is part of a legislative rule originally proposed by
the WVDEP and necessarily affirmed through a legislative authorization process, as required by
West Virginia Code Chapter 29A. See W. Va. Code § 29A-1-2(d) (“Unless lawfully promulgated
as an emergency rule, a legislative rule is only a proposal by the agency and has no legal force or
effect until promulgated by specific authorization of the legislature.” (emphasis added)); W. Va.
Code R. § 47-2-1.2, -1.4.
A reviewing court is only required to afford deference, if any, to an agency’s interpretation
of its own legislative rule if the regulation contains an ambiguity. Cookman Realty Grp., Inc. v.
Taylor, 566 S.E.2d 294, 298 (W. Va. 2002). “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). A
court interpreting a statute has a “duty to avoid whenever possible an application of a statute which
13

leads to absurd, inconsistent, unjust or unreasonable results.” Davies v. W. Va. Office of Ins.
Comm’r, 708 S.E.2d 524, 530 (W. Va. 2011) (brackets omitted) (internal quotation marks
omitted). “Where a particular construction of a statute would result in an absurdity, some other
reasonable construction, which will not produce such absurdity, will be made.” Id. (internal
quotation marks omitted). “In giving effect to a word employed in a legislative enactment, it is a
fundamental principle of statutory construction that the meaning of a word cannot be determined
in isolation, but it must be drawn from the context in which it is used.” Osborne v. United States,
567 S.E.2d 677, 684 (W. Va. 2002) (brackets omitted) (internal quotation marks omitted).
“Additionally, in the interpretation of statutes, words and phrases therein are often limited in
meaning and effect, by necessary implications arising from other words or clauses thereof.” Id.
(brackets omitted) (internal quotation marks omitted).
Section 47-2-3.2—the rule which the WVDEP intends to partially interpret in the
Guidance passages quoted above—states, in pertinent part:
No . . . 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; [and]
...
3.2.i. Any other condition . . . which adversely alters the integrity of the waters of
the State . . . ; no significant adverse impact to the chemical, physical, hydrologic,
or biological components of aquatic ecosystems shall be allowed.
W. Va. Code R. § 47-2-3.2, -3.2.e, -3.2.i.
Plaintiffs bring this case under subsections 3.2.e and 3.2.i. None of the operative wording
in either subsection appears in the definitions sections which apply to § 47-2-3.2. See W. Va. Code
§ 22-11-3; W. Va. Code R. § 47-2-2. The Court finds that subsection 3.2.e, when read alone, is
unreasonable and creates an absurdity. Giving the operative words in subsection 3.2.e their

14

common, ordinary and accepted meaning in the context in which they are used, a literal reading of
subsection 3.2.e leads to the conclusion that any wastes which materially contribute to even the
most miniscule harm to a single aquatic creature result in a violation of West Virginia’s narrative
water quality standards. On the other hand, the final directive in the narrative water quality
standards—“no significant adverse impact to the chemical, physical, hydrologic, or biological
components of aquatic ecosystems shall be allowed”—appears after a semicolon in subsection
3.2.i. The placement of this directive at the end of all of the narrative water quality standards—and
the fact that it is clearly grammatically unmoored from the introductory wording of § 47-2-3.2,
which states, “No . . . wastes present in any of the waters of the state shall cause therein or
materially contribute to any of the following conditions thereof . . .”—indicates to this Court that
the directive informs each of the specific subsections listed before it. In order to avoid an absurdity
and based upon the grammatically distinct structure of this final directive, it appears to this Court
that the directive “no significant adverse impact to the chemical, physical, hydrologic, or
biological components of aquatic ecosystems shall be allowed” modifies subsection 3.2.e, such
that “harm” to “aquatic life” requires a showing of a “significant adverse impact to the . . .
biological components of aquatic ecosystems.”6

6

To the extent that the absurdity created by reading subsection 3.2.e alone creates an ambiguity—or that the tandem
reading of subsections 3.2.e and 3.2.i is ambiguous—and to the extent that the Court would be required to defer on any
level to an agency interpretation regarding such ambiguity, both the WVDEP—the state agency which promulgated
this rule—and the EPA—the federal agency which, as explained below, has authority under certain circumstances to
determine when West Virginia’s narrative water quality standards are being violated—appear to have come to the
same reasonable interpretation as the Court: subsection 3.2.i modifies subsection 3.2.e. For example, in its Guidance,
the WVDEP includes both subsections 3.2.e and 3.2.i in the title—“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.”—; however, the remainder of the document does not mention subsection 3.2.e, identifies
subsection 3.2.i three times, and purports throughout to define the proper way to measure a “significant adverse
impact” to the “biological components of aquatic ecosystems”—both of which phrases appear solely in subsection
3.2.i. WVDEP’s Guidance at 1, 2 & n.4, 3-7. Also by way of example, the EPA, in its March 2013 letter to the
WVDEP, repeatedly discussed “whether certain waters [were] achieving West Virginia’s narrative water quality
criteria as applied to the aquatic life uses (W.Va. CSR § 47-2-3.2(e) & (i)),” never once analyzing one subsection
separately from the other, thus signaling that the EPA viewed subsections 3.2.e and 3.2.i as applying in tandem to any
analysis. See Mar. 25, 2013, Letter from EPA to WVDEP at JE 276, 280, 285-86, 289, 292-93, 295 (emphasis added).

15

However, the operative phrases in subsection 3.2.i—“significant adverse impact” and the
“biological components of aquatic ecosystems”—are ambiguous. The U.S. Supreme Court has
ruled that “[w]hen a[] [federal] agency interprets its own regulation, [a federal court], as a general
rule, [must] defer[] to it unless that interpretation is plainly erroneous or inconsistent with the
regulation.” Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326, 1337 (2013) (internal quotation marks
omitted). On the other hand, in this case, the Court is dealing with a state agency’s interpretation of
a state legislative rule, which was necessarily promulgated through both the agency’s and the state
legislature’s action.
The West Virginia Supreme Court of Appeals has not ruled as to what level of deference, if
any, a state agency’s interpretation of a state legislative rule should receive. See Cookman Realty
Grp., 566 S.E.2d at 298. Nevertheless, this Court finds that West Virginia law regarding
interpretive and legislative rules resolves the issue. West Virginia Code § 29A-1-2(i) defines the
word “rule” as follows:
“Rule” includes every regulation, standard or statement of policy or interpretation
of general application and future effect, including the amendment or repeal thereof,
affecting private rights, privileges or interests, or the procedures available to the
public, adopted by an agency to implement, extend, apply, interpret or make
specific the law enforced or administered by it or to govern its organization or
procedure, but does not include regulations relating solely to the internal
management of the agency, nor regulations of which notice is customarily given to
the public by markers or signs, nor mere instructions. Every rule shall be classified
as “legislative rule,” “interpretive rule” or “procedural rule,”[7] all as defined in this
section, and shall be effective only as provided in this chapter.
W. Va. Code § 29A-1-2(i) (emphasis added). West Virginia Code § 29A-1-2(d) deals with
legislative rules:
“Legislative rule” means every rule . . . proposed or promulgated by an agency
pursuant to this chapter. Legislative rule includes every rule which, when
promulgated after or pursuant to authorization of the legislature, has (1) the force of
7

Section 29A-1-2(h) defines “procedural rule” as “every rule . . . which fixes rules of procedure, practice or evidence
for dealings with or proceedings before an agency, including forms prescribed by the agency.”

16

law, or (2) supplies a basis for the imposition of civil or criminal liability, or (3)
grants or denies a specific benefit. Every rule which, when effective, is
determinative on any issue affecting private rights, privileges or interests is a
legislative rule. Unless lawfully promulgated as an emergency rule, a legislative
rule is only a proposal by the agency and has no legal force or effect until
promulgated by specific authorization of the legislature. Except where otherwise
specifically provided in this code, legislative rule does not include (A) findings or
determinations of fact made or reported by an agency, including any such findings
and determinations as are required to be made by any agency as a condition
precedent to proposal of a rule to the legislature; (B) declaratory rulings issued by
an agency pursuant to the provisions of section one, article four of this chapter; (C)
orders, as defined in subdivision (e) of this section; or (D) executive orders or
proclamations by the governor issued solely in the exercise of executive power,
including executive orders issued in the event of a public disaster or emergency
....
W. Va. Code § 29A-1-2(d) (emphasis added). West Virginia Code § 29A-1-2(c) deals with
interpretive rules:
“Interpretive rule” means every rule . . . adopted by an agency independently of any
delegation of legislative power which is intended by the agency to provide
information or guidance to the public regarding the agency’s interpretations,
policy or opinions upon the law enforced or administered by it and which is not
intended by the agency to be determinative of any issue affecting private rights,
privileges or interests. An interpretive rule may not be relied upon to impose a civil
or criminal sanction nor to regulate private conduct or the exercise of private rights
or privileges nor to confer any right or privilege provided by law and is not
admissible in any administrative or judicial proceeding for such purpose, except
where the interpretive rule established the conditions for the exercise of
discretionary power as herein provided. . . . Where any provision of this code
lawfully commits any decision or determination of fact or judgment to the sole
discretion of any agency or any executive officer or employee, the conditions for
the exercise of that discretion, to the extent that such conditions are not prescribed
by statute or by legislative rule, may be established by an interpretive rule and such
rule is admissible in any administrative or judicial proceeding to prove such
conditions . . . .
W. Va. Code § 29A-1-2(c) (emphasis added).
It is apparent to this Court that the WVDEP’s Guidance is an interpretive rule. The West
Virginia Supreme Court of Appeals has clarified that, “‘[a]lthough [interpretive rules] are entitled
to some deference from the courts, [they] do not have the force of law nor are they irrevocably

17

binding on the agency or the court. They are entitled on judicial review only to the weight that their
inherent persuasiveness commands.’” Hornbeck v. Caplinger, 712 S.E.2d 779, 785 (W. Va. 2011)
(quoting Appalachian Power Co. v. State Tax Dep’t of W. Va., 466 S.E.2d 424, 444 (W. Va.
1995)); see also Cookman Realty Grp., 566 S.E.2d at 304-05 (Starcher, J., concurring) (“I discern
no basis for affording Chevron deference to an agency’s informal interpretation of its own
regulations, where we have otherwise refused to do so in the case of formal interpretive rules
promulgated pursuant to the notice-and-comment provisions of W. Va. Code, 29A–3–8. Indeed, to
do so would run afoul of the spirit, if not the letter, of the Legislature’s admonition that such
interpretive rules should not be given controlling weight unless they are issued pursuant to a
legislative grant of discretion . . . .” (citation omitted)). Thus, the WVDEP’s Guidance is only due
deference from this Court to the extent of its inherent persuasiveness.
“[T]he rulings, interpretations and opinions of [an agency], while not controlling upon the
courts by reason of their authority, do constitute a body of experience and informed judgment to
which courts and litigants may properly resort for guidance.” Hornbeck, 712 S.E.2d at 785
(internal quotation marks omitted). “The weight of such a judgment in a particular case will
depend upon the thoroughness evident in its consideration, the validity of its reasoning, its
consistency with earlier and later pronouncements, and all those factors which give it power to
persuade, if lacking power to control.” Id. (internal quotation marks omitted).
The WVDEP, through its Guidance, appears to interpret subsection 3.2.i—and, thus, also
subsection 3.2.e—in two ways. First, it purports to further define the biological standard in
subsection 3.2.i—“significant adverse impact to the . . . biological components of aquatic
ecosystems”—to mean “a material decline in the overall health of an aquatic ecosystem.”

18

WVDEP’s Guidance at 3. Before coming to this conclusion, the WVDEP “recognizes”8—but does
not adopt through legislative rule-making—the West Virginia legislature’s resolution, through
H.C.R. 111, “[t]hat the requirements of the narrative criteria are met when a stream (a) supports a
balanced aquatic community that is diverse in species composition; and (b) contains appropriate
trophic levels of fish (in streams with sufficient flows to support fish populations); and (c) [sic] the
aquatic community is not composed only of pollution tolerant species or the aquatic community is
composed of benthic invertebrate assemblages sufficient to perform the biological functions
necessary to support fish communities within the assessed reach (or, if the assessed reach has
insufficient flows to support a fish community, in those downstream reaches where fish are
present).” Id. at 1. Second, the WVDEP purports to redefine the methodology used to find a
violation of the biological standard in subsection 3.2.i to include a “holistic approach to ecosystem

8

In addition to the portions quoted above, the Guidance states:
[This] Guidance was developed in accordance with the [WVWPCA], which states that “the public
policy of the State of West Virginia [is] to maintain reasonable standards of purity and quality of the
water of the State consistent with (1) public health and public enjoyment thereof; (2) the
propagation and protection of animal, bird, fish, aquatic and plant life; and (3) the expansion of
employment opportunities, maintenance and expansion of agriculture and the provision of a
permanent foundation for healthy industrial development.”
. . . [This] Guidance also recognizes the intent of the West Virginia Legislature, which has formally
resolved [in H.C.R. 111] as follows:
That any interpretation and implementation of West Virginia’s narrative water quality
standards is the responsibility of the [WVDEP];
That the requirements of the narrative criteria are met when a stream (a) supports a balanced
aquatic community that is diverse in species composition; and (b) contains appropriate trophic
levels of fish (in streams with sufficient flows to support fish populations); and (c) [sic] the
aquatic community is not composed only of pollution tolerant species or the aquatic community
is composed of benthic invertebrate assemblages sufficient to perform the biological functions
necessary to support fish communities within the assessed reach (or, if the assessed reach has
insufficient flows to support a fish community, in those downstream reaches where fish are
present); and
That interpretation of West Virginia’s narrative water quality standards must faithfully balance
the protection of the environment with the need to maintain and expand opportunities for
employment, agriculture, and industry as set forth in the Legislature’s statement of public
policy as contained in the West Virginia Water Pollution Control Act.
...
Through adoption of H.C.R. 111, the West Virginia Legislature has given [the WV]DEP direction
as to how it should implement its narrative water quality standards.
WVDEP’s Guidance at 1-2, 7 (emphasis added) (footnotes omitted).

19

assessment,” which is wholly undefined except that it requires something more than solely
obtaining a WVSCI score. Id. at 3-4.
To the extent that the WVDEP further defines the biological standard in subsection 3.2.i to
mean “a material decline in the overall health of an aquatic ecosystem”—with no further definition
of “material,” “overall health” or “aquatic ecosystem”—, the Court sees no reason to defer to such
an interpretation. This phrase merely restates the applicable standard—a “significant adverse
impact to the . . . biological components of aquatic ecosystems”—, such that it is not really an
interpretation as much as a rewording. To the extent that Defendants argue that the WVDEP is
interpreting subsection 3.2.i to incorporate the three-part test from H.C.R. 111, the Court disagrees
that the WVDEP has done so.9
To the extent that the WVDEP purports to redefine the methodology used to find a
violation of the biological standard in subsection 3.2.i to include a “holistic approach to ecosystem
assessment,” which is wholly undefined except that it requires something more than solely
obtaining a WVSCI score, the Court does not find such a redefinition persuasive or, indeed, even
permissible. The profound issue with the WVDEP’s new-found “methodology” is that it is
actually an absence of methodology. The WVDEP states that an undefined “holistic approach” is
needed and that a low WVSCI score alone is not enough to find a violation, thus negating the

9

The fact that the West Virginia legislature felt the need to pass Senate Bill 562, which directs the WVDEP to
promulgate new rules incorporating the three-part test from H.C.R. 111,—two years after the passage of H.C.R. 111
and the subsequent publishing of the WVDEP’s Guidance—is further proof that the WVDEP did not interpret
subsection 3.2.i to incorporate that three-part test. Apparently, the legislature agreed with this Court that, if the
WVDEP believed H.C.R. 111 to be binding, it should have stated such in its Guidance and/or begun the process of
promulgating a new rule based upon the three-part test in H.C.R. 111. The WVDEP did neither. Further, even were the
WVDEP to have somehow adopted the three-part test from H.C.R. 111 by “recogniz[ing] the intent” of the
legislature—a far stretch—, such an interpretation of subsection 3.2.i would be unpersuasive to this Court, given that
the WVDEP would merely be rubber-stamping the legislature’s interpretation without giving any reasoning through
which this Court could assess the interpretation. The entire point of this type of persuasive authority “deference” to
agency interpretations is the recognition of an agency’s superior expertise in the area. No such expertise was used to
create the three-part test, and the Guidance reveals no assessment of the test by the WVDEP. Importantly, an
“administrative rule[] may not, under the guise of ‘interpretation,’ be modified, revised, amended or rewritten.”
Cookman Realty Grp., 566 S.E.2d at 298 (internal quotation marks omitted). This Court will not do so.

20

WVDEP’s own previous practice of using WVSCI scores to define whether a violation of the
biological standard in subsection 3.2.i was occurring, such that a stream needed to be listed as
“impaired” under Section 303(d) of the CWA. See WVDEP Division of Water and Waste
Management, 2012 Draft West Virginia Integrated Water Quality Monitoring and Assessment
Report 15-16 (2012) (“WVDEP 2012 Draft Report”), Joint Ex. 119 at JE 316-317.
The void created by the WVDEP in rejecting its prior practice of relying upon WVSCI
scores is not filled by any other methodology. Instead, as indicated by the WVDEP’s more recent
statements in West Virginia’s draft 2012 Section 303(d) list of impaired waters, the WVDEP’s
enforcement of the biological narrative water quality standards embodied in § 47-2-3.2.e and -3.2.i
has come to nearly a stand-still as a result of its current lack of a methodology for assessing
violations of those standards. Id. at JE 316 (“In response to [S.B. 562, which requires that the
WVDEP promulgate new rules incorporating the three-part test originally outlined in H.C.R. 111],
[the WV]DEP is not adding new biological impairments to the 2012 Section 303(d) list.”). As
explained below, it is this very abdication of responsibility by the WVDEP which required the
EPA to step in and conduct its own assessment of West Virginia’s biological narrative water
quality standards—embodied in § 47-2-3.2.e and -3.2.i—for the purposes of completing West
Virginia’s 2012 Section 303(d) list of impaired waters. Letter from Shawn M. Garvin, Regional
Administrator, EPA, to Randy C. Huffman, Secretary, WVDEP, at 1 (Mar. 25, 2013) (“Mar. 25,
2013, Letter from EPA to WVDEP”), Joint Ex. 118 at JE 276; see also 33 U.S.C. § 1313(d)(1)(A),
(d)(2). As explained earlier, the central purpose of a citizen suit under the CWA is to allow citizens
to stop pollution when the government cannot or will not command compliance. To credit the
WVDEP’s current position that there is no methodology for assessing West Virginia’s biological
narrative water quality standards in § 47-2-3.2.e and -3.2.i—leading to no enforcement

21

whatsoever—would be to contravene the very purpose of this citizen suit and to fail to enforce the
CWA. This Court will not do so.10
Instead, this Court will continue to follow the WVSCI methodology for determining
compliance with the biological narrative water quality standards in § 47-2-3.2.e and -3.2.i. There
are multiple reasons which require this decision. First, WVSCI was the last methodology used by
the WVDEP to define whether a violation of the biological standard in subsection 3.2.i was
occurring, such that a stream needed to be listed as “impaired” under Section 303(d) of the CWA.11
Even in its 2012 Draft Report, despite adding no new biologically-impaired streams to West
Virginia’s 303(d) list, the WVDEP retained previously-listed biologically-impaired streams,
which had been included in the list in the past based upon WVSCI scoring. WVDEP 2012 Draft
Report at JE 316; see Mar. 25, 2013, Letter from EPA to WVDEP at JE 276. Second, WVSCI is
the methodology most recently used by the EPA to complete West Virginia’s 2012 Section 303(d)
list of impaired waters. 12 Further, the EPA—the final authority regarding whether a state’s
narrative water quality criteria are being violated for the purposes of Section 303(d)

10

Regardless, Plaintiffs present more than simply stand-alone WVSCI scores in this case.
Ironically, in the WVDEP’s 2012 Draft Report—in which the agency refused to use any methodology to assess
West Virginia’s streams under the biological narrative water quality standards for the purpose of the 2012 Section
303(d) listing—, the WVDEP lauded the use of benthic macroinvertebrates to assess overall ecological health:
The [WV]DEP uses benthic macroinvertebrates to assess the biological condition of streams in the
state. These organisms provide reliable information on water and habitat quality in streams and have
been used as indicators all over the world for nearly 100 years. They are extremely diverse and
exhibit a wide range of tolerances to pollutants. Further, they serve as an excellent tool for
measuring overall ecological health, especially when summarized into a single index of biological
integrity[, like WVSCI].
WVDEP 2012 Draft Report at JE 327.
12
See Mar. 25, 2013, Letter from EPA to WVDEP at JE 299 (“Given . . . [the] WVDEP’s representation that WVSCI
was a ‘valid’ assessment methodology at the time that prior impairments were identified, [the] EPA has elected for
purposes of the 2012 Section 303(d) list to apply WVSCI, [the] WVDEP’s past methodology . . . . [The] EPA’s partial
disapproval [of the 2012 list submitted by the WVDEP] is based not upon [the] WVDEP’s selection of an assessment
methodology, but rather upon [the] WVDEP’s failure to evaluate certain existing and readily available biological data
using any assessment methodology. [The] EPA’s decision to utilize WVSCI, a methodology that [the] WVDEP
acknowledges was valid in the past, is consistent with the basis of its partial disapproval while avoiding introduction of
a new methodology while [the] WVDEP undertakes methodology development pursuant to SB562.”).
11

22

listing—recently made the specific finding that WVSCI scores below 6813 “indicate that [the]
waters [at and in which such scores were assessed] do not achieve the West Virginia narrative
criteria as applied to the aquatic life uses”—defined by the EPA to mean the biological standards
embodied in § 47-2-3.2.e and -3.2.i. See Mar. 25, 2013, Letter from EPA to WVDEP at JE 295-96,
299; see also 33 U.S.C. § 1313(d)(2).
c.

The West Virginia legislature’s instruction, through its passage of
H.C.R. 111 and of S.B. 562, and the WVDEP’s instruction, in its
Guidance, that this holistic approach requires proof of effects on fish,
not just invertebrates, in order to find a violation

In 2010, the West Virginia legislature passed H.C.R. 111, which states, in pertinent part:
[West Virginia’s] narrative water quality standards codified at 47 CSR 2-3 . . . must
be implemented and interpreted in a manner that is protective of aquatic
communities consistent with the Legislature’s statement of public policy and
applicable laws . . . . The State of West Virginia has not adopted subcategories of
special use to protect a certain species of mayfly but protects the aquatic
community consistent with the Legislature’s statement of public policy . . . . [A]ny
interpretation and implementation of West Virginia’s narrative water quality
standards is the responsibility of the [WVDEP] . . . . [T]he requirements of the
narrative criteria are met, when a stream (a) supports a balanced aquatic community
that is diverse in species composition; and (b) contains appropriate trophic levels of
fish (in streams with sufficient flows to support fish populations); and (c) [sic] the
aquatic community is not composed only of pollution tolerant species, or the
aquatic community is composed of benthic invertebrate assemblages sufficient to
perform the biological functions necessary to support fish communities within the
assessed reach (or, if the assessed reach has insufficient flows to support a fish
community, in those downstream reaches where fish are present) . . . .
H. Con. Res. 111, 2010 Legis., Reg. Sess. (W. Va. 2010).
First, it is important to note that H.C.R. 111 is not a properly promulgated statute. Instead,
it is a concurrent resolution; thus, according to the West Virginia Supreme Court of Appeals, it has
no force of law, in and of itself. State ex rel. Barker v. Manchin, 279 S.E.2d 622, 633 (W. Va.
1981) (“Joint or concurrent resolutions, while they may bind the members of the legislative body,
are not statutes and do not have the force and effect of law.”). Further, in H.C.R. 111, the
13

The issue of whether the proper threshold for impairment under WVSCI is 68 or 60.6 is dealt with below.

23

legislature explicitly states its intention to affect the interpretation of West Virginia’s narrative
water quality standards, as embodied in West Virginia Code of State Rules § 47-2-3, which, as
explained earlier, is part of a legislative rule originally proposed by the WVDEP—an
administrative agency—and affirmed by the legislature. The West Virginia Supreme Court of
Appeals has stated that, though “the Legislature has the power to void or to amend administrative
rules and regulations, when it exercises that power it must act as a legislature . . . within the
confines of the enactment procedures mandated by [the West Virginia] [C]onstitution.[14] It cannot
invest itself with the power to act as an administrative agency in order to avoid those
requirements.” Id.; see also id. at 634 n.8 (“Regardless of its inherent efficiency, informal coercive
review of executive rule making is not permissible in the presence of a constitutional mandate that
the powers of government be maintained in separate and distinct branches.”).
Here, it is apparent to the Court that the West Virginia legislature, through H.C.R. 111,
attempted to modify West Virginia’s narrative water quality standards. The specific modification
detailed by the resolution is that a violation of West Virginia’s narrative water quality standards

14

As explained by the West Virginia Supreme Court of Appeals, the West Virginia Constitution places rigorous
limits—which are not followed when a mere resolution is passed—upon the proper enactment of state statutes:
Article VI, section 1 vests the Senate and the House of Delegates with the legislative power and
requires enactments to be styled, “Be it enacted by the Legislature of West Virginia.” “Bills and
resolutions may originate in either house, but may be passed, amended or rejected by the other.” W.
Va. Const. art. VI, s 28. Section 29 of article VI prohibits a bill from becoming law “until it has been
fully and distinctly read, on three different days, in each house . . . ”, except in cases of urgency. No
act of the Legislature may embrace more than one object, which must be expressed in the title of the
act, nor may any law be revived or amended by reference only to its title. W. Va. Const. art. VI, s 30.
Article VI, s 31 provides for the passage of amended bills or resolutions upon the affirmative vote of
a majority of the house in which the bill or resolution was originally passed. Additional procedures
for the passage of budgetary items and appropriations bills are set out at length in article VI, s 51 and
its subsections. Before any bill passed by the Legislature can become law, it must be submitted to
the Governor for his approval. If the Governor disapproves the bill, it is returned first to the house in
which it originated and then to the other house. The Governor’s veto may be overriden [sic] by a
majority vote of the members of both houses. W. Va. Const. art. 7, s 14. Detailed procedures for the
Governor’s veto or approval of appropriations bills are set forth in article VI, section 7 and article
VII, section 15.
Manchin, 279 S.E.2d at 632.

24

does not occur—although a violation of one of the subsections of § 47-2-315 would otherwise be
found—“when a stream (a) supports a balanced aquatic community that is diverse in species
composition; and (b) contains appropriate trophic levels of fish (in streams with sufficient flows to
support fish populations); and (c) [sic] the aquatic community is not composed only of pollution
tolerant species, or the aquatic community is composed of benthic invertebrate assemblages
sufficient to perform the biological functions necessary to support fish communities within the
assessed reach (or, if the assessed reach has insufficient flows to support a fish community, in
those downstream reaches where fish are present).” W. Va. H. Con. Res. 111. Though it is unclear
whether the legislature intended to modify all of the subsections under § 47-2-3.2 by adding a
biological component which is clearly missing from the majority of the subsections as written or
solely to modify subsections 3.2.e and/or 3.2.i, such attempted modification outside of
constitutionally-mandated procedures has been declared null and void by the West Virginia
Supreme Court of Appeals. Thus, this Court will give no weight to the legislature’s attempted
modifications, in H.C.R. 111, to West Virginia’s water quality standards.
In 2012—two years after H.C.R. 111 was passed and the WVDEP published its
Guidance—, the West Virginia legislature passed S.B. 562. S.B. 562 states, in pertinent part:
Be it enacted by the Legislature of West Virginia: That §22-11-7b of the Code of
West Virginia, 1931, as amended, be amended and reenacted to read as follows:
...
(f) The secretary shall propose rules measuring compliance with the biologic
component of West Virginia’s narrative water quality standard [sic] requires
evaluation of the holistic health of the aquatic ecosystem and a determination
that the stream: (i) Supports a balanced aquatic community that is diverse in
species composition; (ii) contains appropriate trophic levels of fish, in streams
that have flows sufficient to support fish populations; and (iii) [sic] the aquatic
community is composed of benthic invertebrate assemblages sufficient to
perform the biological functions necessary to support fish communities within
the assessed reach, or, if the assessed reach has insufficient flows to support a
fish community, in those downstream reaches where fish are present. The
15

No subsection under § 47-2-3 is specified at any point in the entire resolution.

25

secretary shall propose rules for legislative approval in accordance with the
provisions of article three, chapter twenty-nine-a of this code that implement
the provisions of this subsection. Rules promulgated pursuant to this subsection
may not establish measurements for biologic components of West Virginia's
narrative water quality standards that would establish standards less protective
than requirements that exist at the time of enactment of the amendments to this
subsection by the Legislature during the 2012 regular session.
S.B. 562, 80th Leg., Reg. Sess. (W. Va. 2012) (emphasis omitted).
The Court first notes that S.B. 562, unlike H.C.R. 111, is a duly-enacted statute. 16
However, S.B. 562 does not attempt to directly amend § 47-2-3.2.i. Instead, the statute directs the
WVDEP to promulgate legislative rules which will address how to measure compliance with the
biological component of West Virginia’s narrative water quality standards and which will include
1) a requirement that the holistic health of the aquatic ecosystem be evaluated and 2) the specific
three-part test regarding the composition of the aquatic community outlined in S.B. 562. The
WVDEP will promulgate legislative rules pursuant to S.B. 562 in due time. In the interim, the
Court may not, under the guise of “interpretation,” modify § 47-2-3.2.i based upon S.B. 562. See
Cookman Realty Grp., 566 S.E.2d at 298.
To summarize, this Court has found that 1) H.C.R. 111 lacks the force of law to directly
modify § 47-2-3.2, 2) the WVDEP did not adopt the three-part test from H.C.R. 111 through its
Guidance, and 3) S.B. 562 does not directly modify § 47-2-3.2. Thus, the Court need not defer to
this test even to the extent of its persuasiveness.
Further, the test, itself, does not require proof of effects on fish in order to find a violation.
The direct inverse of the test shows that a violation of West Virginia’s narrative water quality
16

Also unlike H.C.R. 111, the first sentence of the subsection of S.B. 562 in which wording very similar to that in
H.C.R. 111 appears clearly focuses solely upon “the biologic component of West Virginia’s narrative water quality
standard[s].” S.B. 562(f) (emphasis added). Subsection 3.2.i is the only subsection within all of the water quality
standards embodied in § 47-2-3.2 which refers to “biological components.” Further, after specifying its focus upon
“biologic components,” S.B. 562 then goes on to use another phrase which appears only in subsection 3.2.i: “aquatic
ecosystem.” Based upon this wording, it appears to the Court that S.B. 562 is intended specifically to affect subsection
3.2.i.

26

standards can occur “when a stream (a) [does not] support[] a balanced aquatic community that is
diverse in species composition; [or] (b) [does not] contain[] appropriate trophic levels of fish (in
streams with sufficient flows to support fish populations); [or] (c) [sic] the aquatic community is []
composed only of pollution tolerant species [and] the aquatic community is [not] composed of
benthic invertebrate assemblages sufficient to perform the biological functions necessary to
support fish communities within the assessed reach (or, if the assessed reach has insufficient flows
to support a fish community, in those downstream reaches where fish are present).” WVDEP’s
Guidance at 1-2 (emphasis added). Thus, a violation of the narrative water quality standards occurs
when any one of the three conditions above is met, including when a stream does not support a
balanced aquatic community that is diverse in species composition. Fish are not mentioned at all in
this first condition.
d.

The WVDEP’s instruction, in its Guidance, that the proper WVSCI
score at which to list a stream as “impaired” under Section 303(d) of
the CWA is 60.6, not 68

Defendants argue that Plaintiffs cannot prove a violation of West Virginia’s narrative
water quality standards at a particular location by merely showing that a WVSCI score at that
location falls below 68, particularly because the WVDEP historically did not list a stream as
“impaired” under Section 303(d) of the CWA unless scores at the stream fell below 60.6; thus,
according to Defendants, to the extent this Court relies on WVSCI scores in determining liability,
it should only rely on scores below 60.6. Plaintiffs argue that the EPA 1) found the WVDEP’s use
of 60.6 as the cutoff for impairment of streams to be “statistically unsupportable” and 2) declared
that all scores within the “gray zone” between 60.6 and 68 indicate that the waters from which such
scores were obtained “do not achieve the West Virginia narrative criteria as applied to aquatic life
uses,” since 68 is the proper cutoff score. Pls.’ Post-Trial Brief at 21, ECF No. 106. Plaintiffs

27

further argue that such findings by the EPA overrule any contrary findings by the WVDEP because
the EPA declared that West Virginia’s narrative water quality standards are federal, not state,
requirements.
As explained earlier, WVSCI scoring was the most recent methodology used by the
WVDEP—and is still used by the EPA—to determine whether West Virginia streams are
biologically “impaired”—meaning that they are waters for which numeric effluent limitations are
not stringent enough to maintain the biological narrative water quality standards embodied in
§ 47-2-3.2.e and -3.2.i—under Section 303(d) of the CWA. See 33 U.S.C. § 1313(d)(1)(A); Mar.
25, 2013, Letter from EPA to WVDEP at JE 293; WVDEP 2012 Draft Report at JE 316-317.
Regarding the proper WVSCI score cutoff at which the WVDEP historically listed a
stream as “impaired” under Section 303(d) of the CWA, the WVDEP’s Guidance states:
Based on the 5th percentile of reference values, the current WVSCI score that
indicates the integrity of a benthic macroinvertebrate community in West
Virginia’s wadeable streams is 68.0. The threshold for inclusion on the 303(d) List
has historically been 60.6. That value subtracts a precision estimate from the 5th
percentile of reference values, and its historical use was intended to take into
account sampling error and to aid [the WV]DEP in allocating its resources so as to
avoid misclassifying non-impaired waters as impaired. WVSCI and its application
in the 303(d) listing process are consistent with methodologies implemented to
assess protection of aquatic ecosystems by all of West Virginia’s neighboring
states.
WVDEP’s Guidance at 5.
The statute which requires the compilation of Section 303(d) lists of “impaired” waters by
the states specifies: “Each State shall identify those waters within its boundaries for which the
effluent limitations . . . are not stringent enough to implement any water quality standard
applicable to such waters.” 33 U.S.C. § 1313(d)(1)(A). That same statute then states:
Each State shall submit to the Administrator [of the EPA] from time to time . . . for
his approval the waters identified and the loads established under paragraph[]
(1)(A) . . . of this subsection. The Administrator shall either approve or disapprove
28

such identification and load . . . . If the Administrator approves such identification
and load, such State shall incorporate them into its current plan . . . . If the
Administrator disapproves such identification and load, he shall . . . identify such
waters in such State and establish such loads for such waters as he determines
necessary to implement the water quality standards applicable to such waters and
upon such identification and establishment the State shall incorporate them into its
current plan . . . .
Id. § 1313(d)(2) (emphasis added). EPA regulations delegate the authority of the Administrator of
the EPA in § 1313(d)(2) to regional EPA administrators. 40 C.F.R. § 130.7(d). Thus, under federal
law, an EPA regional administrator has the final authority to determine which waters within his
region are “impaired” according to the water quality standards applicable to those waters.17
In March 2013, the EPA Regional Administrator for Region III partially approved and
partially disapproved West Virginia’s 2012 Section 303(d) list of impaired waters, which had been
submitted by the WVDEP. Mar. 25, 2013, Letter from EPA to WVDEP at JE 276-77. The partial
disapproval of the list, according to the Regional Administrator, was the result of the “WVDEP’s
decision not to evaluate . . . data regarding whether certain waters [were] achieving West
Virginia’s narrative water quality criteria (W. Va. CSR § 47-2-3.2(e) & (i)) as applied to the
aquatic life uses.” Id. at JE 276. As explained earlier, it was then—and is now—the WVDEP’s
position that “pending completion and adoption by rulemaking of a new methodology, [the
WVDEP] is precluded by [S.B. 562] from evaluating waters for [the] purposes of determining
compliance with the narrative water quality criteria as applied to the aquatic life uses.” Id.; see also
WVDEP 2012 Draft Report at JE 316.
Thus, pursuant to its authority under § 1313(d)(2), the EPA conducted the evaluation of
whether West Virginia’s waters were achieving the state’s biological narrative water quality

17

“For the purposes of listing waters under § 130.7(b), the term[s] ‘water quality standard applicable to such waters’
and ‘applicable water quality standards’ refer to those water quality standards established under section 303 of the
[CWA], including numeric criteria, narrative criteria, waterbody uses, and antidegradation requirements.” 40 C.F.R. §
130.7.

29

standards using WVSCI—which had been used by the WVDEP for the development of West
Virginia’s Section 303(d) lists since 2002—, given that the WVDEP had “acknowledged in the
past [that] WVSCI was a valid means of assessing compliance with West Virginia’s currently
applicable narrative water quality criteria as applied to the aquatic life uses.”18 Mar. 25, 2013,
Letter from EPA to WVDEP at JE 276.
The EPA did note, however, that it did not incorporate into its evaluation the “statistically
unsupported” “gray zone” of WVSCI scores ranging from 60.6 to 68, in which waters would be
listed by the WVDEP as neither impaired nor unimpaired. Id. at JE 277, 296. According to the
Regional Administrator, by creating the “gray zone,” the WVDEP “double-count[ed]” what
statistically should be only one adjustment for sampling variability. Id. at JE 298 (“[T]he potential
variability for which the gray zone is purported to account already is accounted for by variability
in the reference sites.”19). The EPA thus determined that all streams with WVSCI scores below 68
were “impaired,” meaning that such “waters do not achieve the West Virginia narrative criteria as
applied to the aquatic life uses,” embodied in § 47-2-3.2.e and -3.2.i. See id. at JE 299.
As explained earlier, the WVDEP currently has no methodology for assessing whether
violations of the biological narrative water quality standards embodied in § 47-2-3.2.e and -3.2.i
are occurring, and in 2012, the WVDEP flatly refused to use WVSCI scores to make such
determinations. Given that the EPA has final authority under Section 303(d) to determine whether
18

Since 1998, the WVDEP “has considered the health of the macroinvertebrate community as the primary means of
directly measuring whether the narrative water quality criteria as applied to the aquatic life uses are being satisfied.”
Mar. 25, 2013, Letter from EPA to WVDEP at JE 296.
19
“Using the distribution scores from all sites that are considered reference sites, a threshold score of 68.0,
representing the 5th percentile of reference sites, was identified by [the] WVDEP as the lowest WVSCI score that was
considered as fully supportive of the narrative criteria as applied to the aquatic life uses. This means that 95% of all
reference sites had a higher score.” Mar. 25, 2013, Letter from EPA to WVDEP at JE 296. “As a general matter, the
reference sites will have experienced some alteration and thus represent some degree of departure from truly natural
conditions. To account for this, many states (Virginia for example) use 10th percentile of reference, or even the 25th
percentile of reference. EPA agreed with [the] WVDEP’s use of the 5th percentile of reference because of the high
quality and general confidence in West Virginia’s reference samples as representative of something closer to natural
conditions.” Id. at n.2.

30

a stream is biologically impaired, such that the narrative water quality standards embodied in
§ 47-2-3.2.e and -3.2.i are being violated, given the EPA’s detailed and persuasive discussion of
the statistical support for using 68—and not 60.6—as the cutoff,20 and given that the EPA’s
determination appears to be the only presently espoused agency view on the issue, this Court will
credit the EPA’s WVSCI score impairment threshold of 68 and not the WVDEP’s historical
threshold of 60.6.
B.

Fact-Finding
1.

General Causation

As explained earlier, the Court is crediting 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. However, that finding does not specify the
cause of such low scores, as there are many possibilities.
Plaintiffs’ general causation theory in this case is that 1) surface mining causes—or at least
materially contributes to—high conductivity in adjacent streams and, 2) controlling for other
potential confounding factors, high conductivity in streams is scientifically proven to cause or
materially contribute to a significant adverse impact to the chemical or biological components of
aquatic ecosystems—proof of which can be shown through low WVSCI scores. The Court will
now assess the evidence presented at trial to determine whether Plaintiffs have proven this aspect
of their case by a preponderance of the evidence.
First, it is important to note that the EPA has spoken to both general causation theories 1)
through its October 2005 “Mountaintop Mining/Valley Fills in Appalachia Final Programmatic

20

See id. at JE 297-99; see also Letter from Shawn M. Garvin, Regional Administrator, EPA, to Randy C. Huffman,
Secretary, WVDEP, Enclosure 2 at 22-24 (Sept. 30, 2013), Joint Ex. 121 at JE 398-400.

31

Environmental Impact Statement” (“EIS”) and, most importantly, 2) through its March 2011
Benchmark, entitled “A Field-Based Aquatic Life Benchmark for Conductivity in Central
Appalachian Streams.” Pls.’ Ex. 9; see Tr. at 61-62. In its EIS, the EPA identified two downstream
impacts from mountaintop mining valley fills: 1) increases in conductivity and 2) decreases in the
number of invertebrate taxa. See Tr. at 62.
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 at A-1, B-1; see also id. at A-40 (“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 A-37 (“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[, i.e., mountaintop mining with valley fills,] is a substantial
source of the salts that are measured as conductivity.” Id. at A-18.
The Benchmark ultimately concluded that the “chronic aquatic life benchmark value for
conductivity” in West Virginia streams is 300 μS/cm. Id. at xv. To derive this recommended
high-end threshold value, the EPA used the 5th percentile of a species sensitivity distribution,

32

based on the standard methodology for deriving water-quality criteria, meaning that this 300
μS/cm benchmark value for conductivity is “expected to avoid the local extirpation [due to the
salts measured as conductivity] of 95% of native species.” Id. at xiv. In support of both the specific
300 μS/cm benchmark value and the general causal linkage between conductivity and impairment
to 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 xiv, 18
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. at 18 fig. 8.
Plaintiffs’ expert Dr. Margaret Palmer testified that the Benchmark was authored by
scientists who had published important papers in the area of mountaintop mining, conductivity,
and macroinvertebrate effects and that, before publication, the Benchmark was reviewed by a
scientific advisory board, which itself was composed of top scientists who possessed expertise in
the area. See Tr. at 69-71. Plaintiffs’ expert Dr. Ryan King described the peer review process
which the Benchmark underwent before publishing as “very rigorous, very intense, probably at
[the] highest level of review that most documents can receive.” Id. at 248. Additionally, he
expressed his opinion that the Benchmark is “good science.” Id. The Benchmark, itself, lists four
authors, eight contributors, and twenty-five reviewers—including Defendants’ expert Dr. Charles
Menzie—, sixteen of whom were members of the Science Advisory Board. EPA’s Benchmark at
ix-xii.
“Particularly with environmental statutes such as the Clean Water Act, the regulatory
framework . . . requires sophisticated evaluation of complicated data. . . . [A court] therefore do[es]

33

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
omitted) (internal quotation marks omitted); see also Baltimore Gas & Elec. Co. v. Natural Res.
Def. Council, Inc., 462 U.S. 87, 103 (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

34

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
decision stand.” Crutchfield, 325 F.3d at 218 (brackets omitted) (internal quotation marks
omitted).
There is no question in this case that the content of the EPA’s Benchmark falls within the
agency’s special area of expertise; thus, the Court owes deference to the EPA’s scientific
determinations as long as the agency’s reasoning and conclusions are rational. The Benchmark
easily clears this hurdle. The document methodically defines its inquiry, its reasonable analysis,
and its ultimate, rational conclusions. Additionally, the Benchmark underwent extensive scientific
review, and it is respected as good science within the relevant scientific community. 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 if the Court had not deferred to the EPA’s conclusions in its Benchmark, it would still
find that Plaintiffs have proven by a preponderance of the evidence that 1) surface mining
causes—or at least materially contributes to—high conductivity in adjacent streams and, 2)
controlling for other potential confounding factors, high conductivity in streams is scientifically
proven to cause or materially contribute to a significant adverse impact to the chemical and
biological components of aquatic ecosystems. First, the science in the EPA’s Benchmark

35

regarding these two causation theories is independently compelling. Second, two of the authors of
the Benchmark, Dr. Susan Cormier and Dr. Glenn Suter, subsequently published four different
peer-reviewed journal-article versions of several sections of the EPA’s Benchmark—including the
section regarding the causal link between conductivity and biological impairment and the section
ruling out potential confounding factors—in the scientific journal Environmental Toxicology and
Chemistry.21 See Tr. at 84. Plaintiffs’ expert Dr. Palmer testified that this is a quality journal which
focuses specifically on topics such as biological response to pollutants. Id. at 84-86. Plaintiffs’
expert Dr. King testified that “the list of the number of people who commented on [these journal
articles] in the acknowledgments [section and] the peer reviews . . . [is] impressive.” Id. at 258. He
also testified that, in his own professional opinion, he found the articles “rigorous and very
defensible.” Id.
Third, numerous other scientific articles published in peer-reviewed journals—both before
and after publication of the Benchmark—lead to the same conclusions. In 2008, Dr. Gregory
Pond—who would later be one of the contributors to the EPA’s Benchmark—published a
peer-reviewed scientific article in the Journal of the North American Benthological Society, based
upon a field study he conducted which found that, as surface coal mining with valley fills—and its
associated conductivity—increased, benthic macroinvertebrate taxa decreased. 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), Pls.’ Ex. 15; Tr. at 64-65; Pls.’ Ex. 9. Dr. Palmer testified that the
21

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.

36

Journal of the North American Benthological Society is the highest impact freshwater journal in
existence. Tr. at 65.
In 2010, Dr. Palmer and a colleague, Dr. Emily Bernhardt, published a peer-reviewed
scientific article in Science magazine—one of the premier scientific journals worldwide, according
to Dr. Palmer—, which found that as mining increased, conductivity and sulfate—one of the
constituent ions measured by conductivity—increased and there was a coincident decline in a
number of biological metrics, including WVSCI scores. M. A. Palmer et al., Mountaintop Mining
Consequences, 327 Sci. 148 (2010), Pls.’ Ex. 13; Tr. at 63, 65-67. Also in 2010, Dr. Pond
published another peer-reviewed article, this time in the journal Hydrobiologia, which found that
mayflies—which are normally common inhabitants of Appalachian streams—often reduced in
number in or were eliminated from mined areas and that relative mayfly abundance was most
strongly correlated with conductivity, not habitat. Gregory J. Pond, Patterns of Ephemeroptera
Taxa Loss in Appalachian Headwater Streams, Hydrobiologia, Mar. 2010, at 185, Pls.’ Ex. 16
(draft version); Tr. at 67.
In 2011, Dr. Palmer and Dr. Bernhardt published another peer-reviewed article, this time in
the Annals of the New York Academy of Sciences, which found that conductivity, which is
associated with coal mining, leads to the loss of sensitive macroinvertebrate taxa in Central
Appalachian streams. Emily S. Bernhardt & Margaret A. Palmer, The Environmental Costs of
Mountaintop Mining Valley Fill Operations for Aquatic Ecosystems of the Central Appalachians,
Annals N.Y. Acad. Sci., Mar. 2011, at 39, Pls.’ Ex. 1; Tr. at 79. Also in 2011, Ty Lindberg and Dr.
Bernhardt published a peer-reviewed article, entitled “Cumulative Impacts of Mountaintop
Mining on an Appalachian Watershed,” in the Proceedings of the National Academy of Sciences of
the United States of America—a very prestigious journal, according to Dr. Palmer—, which found

37

that conductivity increased in direct proportion to the extent of mining upstream. Tr. at 80-82.
In 2012, Dr. Pond published another peer-reviewed article in Hydrobiologia, which found
that conductivity was an excellent indicator of how many individuals of certain types of
macroinvertebrate taxa normally abundant in Appalachian streams would be found at a disturbed
site. Gregory J. Pond, Biodiversity Loss in Appalachian Headwater Streams (Kentucky, USA):
Plecoptera and Trichoptera Communities, Hydrobiologia, Jan. 2012, at 97, Pls.’ Ex. 17. Also in
2012, Dr. Bernhardt and Dr. King published a peer-reviewed article in Environmental Science and
Technology, which, according to Dr. King, is the number one journal in the field of environmental
science. Emily S. Bernhardt et al., How Many Mountains Can We Mine? Assessing the Regional
Degradation of Central Appalachian Rivers by Surface Coal Mining, 46 Envtl. Sci. & Tech. 8115
(2012), Pls.’ Ex. 2 (draft version); Tr. at 267. The article found that streams receiving water from
mining catchments had significantly higher conductivity than streams in unmined areas. Pls.’ Ex.
2. It also found that, after screening out potential confounding factors, high conductivity was
highly correlated with lower numbers of intolerant taxa and declining WVSCI scores.22 Pls.’ Ex.
2; Tr. at 268-74. Additionally, using a different methodology than the EPA did in its Benchmark,
the paper found that about five percent of taxa were lost at about 300 μS/cm—the same conclusion
that the EPA came to in its Benchmark. Pls.’ Ex. 2; Tr. at 83, 272.
Fourth, multiple different scientific methods were used at different times by different
22

In their cross-examination of Dr. King, Defendants attempted to undermine the causal relationship between
conductivity and low WVSCI scores shown in Dr. King’s 2012 How Many Mountains Can We Mine? article by
pointing out that the article’s reported r-squared number of .36—a measure of total variability in data that is explained
by the fitted line between two variables—shows that conductivity only accounts for 36% of the variability among
WVSCI scores; thus, 64% of the variability is due to causes other than conductivity levels. See Tr. at 278-79, 282-83.
Dr. King explained that at least half of the total variance in WVSCI scores relative to conductivity is attributed to
variability in conductivity over time at a particular site, which can jump up and down a lot. Id. at 314, 336-37. He
further explained that, for snapshot environmental conditions related to biology like this, an r-squared number of .36
reveals a strong relationship between variables. Id. at 316. For instance, the r-squared number for the correlation
between cigarettes smoked and lung cancer is only about .08 to .15, but it is seen as highly significant and very
predictive. See id. at 316. The Court credits Dr. King’s explanation of the meaning of the r-squared number found in
his 2012 article.

38

scientists to come to the same conclusions regarding the causal link between surface mining,
conductivity, and biological impairment, which, Dr. Palmer testified, is the “strongest form of
evidence” possible. Tr. at 83, 89-90, 248-52, 272, 274. For example, in its Benchmark, the EPA
created a species sensitivity distribution—modeling the conductivity level at which each of 163
different genera are extirpated—which revealed that about five percent of taxa are lost at about 300
μS/cm. See EPA’s Benchmark at 18-19. The Benchmark also used another method: modeling
conductivity against WVSCI scores. Id. at A-35, -36. That modeled relationship revealed that the
benchmark threshold of 300 μS/cm corresponded with a failing WVSCI score of 64. Id. at A-36.
Using logistic regression, the probability of impairment—as measured by WVSCI—at 300 μS/cm
was calculated to be 59%. Id. At 500 μS/cm, the probability of impairment was 72%. Id.; Tr. at
324. In the 2012 Bernhardt and King paper, 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
developed. How Many Mountains at C-D, P022-23; Tr. at 272, 274. Each of these different
methods, conducted by different scientists at different times and subjected to the rigorous
peer-review process required by scientific journals, resulted in the same conclusion: conductivity
associated with surface mining causes biological impairment, such that about five percent of taxa
are lost at about 300 μS/cm. EPA’s Benchmark at 18, A-36; How Many Mountains at F; Tr. at 274.
Fifth, the Court finds the expert testimony of Dr. Palmer and Dr. King to be very
persuasive. Among her many accomplishments, Dr. Palmer is a professor in the Department of
Entomology at the University of Maryland, and she is the Director of the National
Socio-Environmental Synthesis Center. Tr. at 52-53; Joint Ex. 28. Dr. Palmer has also published

39

almost 150 articles in scientific journals. Tr. at 55-56; Joint Ex. 28. Further, she has specifically
published and given talks in the area of conductivity, surface mining, and effects upon
macroinvertebrates; she teaches classes in stream ecology; and she has been working on insects in
streams and rivers, including those in the Appalachian region, for over twenty years. Tr. at 53-55;
Joint Ex. 28. Based upon these qualifications, Dr. Palmer was qualified as an expert in
entomology, aquatic ecology, and conductivity as it relates to mountaintop mining and stream
ecology. Tr. at 56. Dr. Palmer stated that, in her professional opinion, the science described above
regarding the causal linkage between surface mining, conductivity, and biological impairment
simply “[d]oesn’t get any better.” Id. at 90. She stated that she keeps up with the science in the
area, yet she has not encountered a single scientific paper which contradicts these conclusions. Id.
at 88.
Dr. King is a tenured professor in the Department of Biology at Baylor University, and in
the past, among other positions, he worked as an ecologist at the Smithsonian Environmental
Research Center in Edgewater, Maryland. Id. at 213; Joint Ex. 44. Dr. King has published
approximately fifty academic papers, about half of which focus upon aquatic entomology, and he
even wrote a chapter in a book regarding North American aquatic insects. Tr. at 214; Joint Ex. 44.
Dr. King also has experience in the field regarding surface mining, entomology, and Appalachian
streams, and he teaches an advanced ecological data analysis course to graduate students at Baylor.
Tr. at 214-15, 217; Joint Ex. 44. Based upon these qualifications, Dr. King was qualified as an
aquatic ecologist, aquatic entomologist, ecological data analyst, and expert on conductivity related
to surface mining in Appalachian headwater streams.23 Tr. at 218-20. Dr. King stated that, in his
professional opinion, the science described above regarding the link between surface mining,
23

The Court notes that, other than to quibble over whether Dr. King was an expert “statistician” or merely an expert
“ecological data analyst,” Defendants did not challenge the qualifications or areas of expertise of either Dr. Palmer or
Dr. King. Tr. at 56, 219-20.

40

conductivity, and biological impairment is a “very mature science.” Id. at 258-59. Dr. King also
specifically opined that, based upon the scientific evidence presented, it “is clear . . . that
conductivity associated with surface mining . . . unequivocally leads to the extirpation of a vast
majority of [the] native taxa [which are] found in reference sites in Appalachian streams.” Id. at
343-44.
Finally, even though the WVDEP’s Guidance purports to find that there is no causative
effect between conductivity and low WVSCI scores, two portions of the Guidance seriously
undermine this assertion and, ironically, support Plaintiffs’ case. First, the Guidance includes a
scatterplot graph of conductivity and associated WVSCI scores which reveals a clear reduction in
WVSCI scores as conductivity increases; in fact, above 1500 μS/cm, only 2 scores out of
approximately 100 fall above the passing WVSCI score threshold of 68 and the vast majority fall
under 60.6. WVDEP’s Guidance at 6. This strong association supports, rather than contradicts, a
causal connection. Second, Figure 2 in the Guidance concludes that conductivity measurements
that fall within the range of 1075-1532.9 μS/cm are “likely stressor[s]” and that measurements
above 1533 μS/cm are “definite stressor[s].” Id. at 7. Almost all of the recent conductivity
measurements at the sites at issue in this case fall within these two categories; many are firmly
within the “definite stressor” category. Thus, the WVDEP’s Guidance is additional evidence that
high levels of conductivity cause biological impairment.
In the face of such overwhelming scientific evidence,24 this Court FINDS that Plaintiffs
have proven, by a preponderance of the evidence, that, 1) controlling for other potential
confounding factors, high conductivity in streams causes or at least materially contributes to a
significant adverse impact to the chemical and biological components of aquatic
ecosystems—proof of which can be shown through low WVSCI scores—and 2) surface mining
24

Defendants presented no contrary scientific literature, even in their cross examinations of Plaintiffs’ experts.

41

causes—or at least materially contributes to—high conductivity in adjacent streams.
2.

Specific Causation
a.

Elk Run: Laurel Creek Area Sampling

Elk Run owns and operates the White Castle No. 1 Surface Mine and the East of Stollings
Surface Mine, both in Boone County, West Virginia. Stip. ¶¶ 1, 12, Joint Ex. 57. Each mine is
regulated both by WV/NPDES permits and by West Virginia Surface Mining Permits issued by
the WVDEP under the CWA and the SMCRA. Id. ¶¶ 3, 14. The East of Stollings Surface Mine has
seven valley fills that discharge from Outfalls 001 through 007 and 019 into Mudlick Fork and
Stolling Fork, tributaries of Laurel Creek. Id. ¶ 13. The White Castle No. 1 Surface Mine has seven
valley fills that discharge from Outlets 001, 002, 003, 004, and 017 directly into Laurel Creek. Id.
¶ 2.
On May 1, 2013, Plaintiffs’ sampler, Evan Hansen of Downstream Solutions, collected
water samples 1) directly from East of Stollings Surface Mine Outfalls 019, 002, and
003—respectively, from upstream to downstream—, which empty into Mudlick Fork, 2) directly
from East of Stollings Surface Mine Outfalls 007, 006, 005, and 004—respectively, from upstream
to downstream—, which empty into Stolling Fork, 3) from an instream sample site in upper Laurel
Creek (“ULC”)—after Mudlick Fork and Stolling Fork converge into Laurel Creek—, and 4) from
an instream sample site in downstream Laurel Creek (“DLC”)—after the outfalls from the White
Castle No. 1 Surface Mine have also emptied into Laurel Creek. Joint Exs. 60, 91; Tr. at 30-36.
While on site, Mr. Hansen documented the temperature, conductivity, dissolved oxygen, and pH
of the water from which he collected the samples. Tr. at 41; Joint Exs. 5-6.
On September 20, 2012, and on May 1, 2013, Dr. Christopher Swan, also hired by
Plaintiffs, collected biological samples from ULC and DLC and calculated WVSCI scores from

42

those samples. Tr. at 8, 18-19, 43; Joint Exs. 24-27; Pls.’ Ex. 18a; Defs.’ Ex. 128 at 7. On
September 20, 2012, Dr. Swan also collected water samples from those sites and documented the
temperature, conductivity, dissolved oxygen, and pH of the water from which he collected the
samples.25 Tr. at 36, 43-44; Joint Ex. 6.
On July 12, 2013, Defendants’ expert, Dr. Charles Menzie of the engineering and scientific
consulting firm Exponent, visited ULC, DLC, and three reference sites, two of which—Neal
Branch and 17332—were chosen from the WVDEP’s database of reference sites. Tr. at 347,
364-66, 371; Joint Ex. 122. The third site, Ash Fork, was chosen by Dr. Menzie as a reference site
because it is known to be “unaffected by mining.” Tr. at 365-66. All three reference sites drain into
Twentymile Creek—which is near Alex Energy’s mines—at different points. Id. at 365; Joint Ex.
128. At each of the five sites, Dr. Menzie took photographs, assessed habitat—including
embeddedness, epifaunal substrate, substrate (sedimentation), and canopy cover—using the
EPA’s rapid bioassessment protocol (“RBP”), 26 and gathered temperature, conductivity, total

25

At trial, Defendants objected to the entirety of Dr. Swan’s benthic sampling based upon his failure to obtain a
collection permit from the State of West Virginia pursuant to West Virginia Code § 20-2-50. Tr. at 21; see W. Va.
Code § 20-2-50 (“Any person desiring to collect or procure any wildlife, including any body tissue, organ or other
portion thereof, eggs, nesting materials or other materials from the habitat of such wildlife shall be required to make
application to the director for a scientific collecting permit.”); see also W. Va. Code § 20-7-9 (“Any person violating
any of the provisions of this chapter or rules promulgated under the provisions of this chapter, the punishment for
which is not prescribed, shall be guilty of a misdemeanor . . . .”). The Court took the objection under advisement. Tr. at
25. Although Plaintiffs addressed this objection in their post-trial briefing, Defendants did not do so. At trial,
Defendants stated—without citation—that the West Virginia Supreme Court of Appeals has held that evidence
obtained through the violation of a criminal statute can be excluded. Id. at 22-23. However, this is not a West Virginia
state court. In the context of federal criminal cases, the Fourth Circuit has repeatedly clarified that “evidence
admissible under federal law cannot be excluded [merely] because it would be inadmissible under state law.” United
States v. Van Metre, 150 F.3d 339, 347 (4th Cir. 1998). The Court sees no reason that this principle of federal courts
abiding by federal—not state—evidentiary rules should be any different in civil cases brought in federal court under
federal question jurisdiction, as is the situation here. Defendants provide no federal evidentiary argument for
excluding from presentation in a federal civil case evidence obtained in violation of state law. The Court thus DENIES
this objection. See also Capitol Records Inc. v. Thomas-Rasset, 680 F. Supp. 2d 1045, 1058 (D. Minn. 2010) (evidence
gathered by a private detective in violation of a state licensing and wiretap statute was admissible in federal court,
where the detective did not intercept or use the communication for the purpose of committing a crime or tort).
26
As described by Dr. Menzie, RBP is “a qualitative/semi-quantitative . . . [multi-metric] methodology for scoring
habitats” which aggregates scores gathered across ten different categories. Tr. at 366, 369; see also Tr. at 234. The
scoring for each category ranges from 0 (poor) to 20 (optimal) or 0 (poor) to 10 (optimal), with four decreasing
categories which can be assigned based upon those scores: optimal, suboptimal, marginal, and poor. See Joint Ex. 133;

43

dissolved solids, pH, turbidity, and dissolved oxygen data directly from the stream. Tr. at 364-65,
367, 369, 381; Joint Exs. 123, 132, 135.
The following table compiles the data collected at ULC, DLC, Neal Branch, 17332, and
Ash Fork by each of the three samplers:27
ULC
WVSCI:
Swan (9/20/12)
Swan (5/1/13)
Conductivity
(μS/cm):
Swan (9/20/12)
Hansen (5/1/13)
Menzie (7/12/13)
pH:
Swan (9/20/12)
Hansen (5/1/13)
Menzie (7/12/13)
Temperature (ºC):
Swan (9/20/12)
Hansen (5/1/13)
Menzie (7/12/13)

DLC

Neal Branch

17332

Ash Fork

51.70
44.05

55.81
37.96

-

-

-

2,360
2,425
2,280

1,917
1,678
1,906

40

39

29

7.7
8.0
8.18

7.6
6.4
8.13

6.98

6.96

6.63

12.2
14.3
23.79

14.0
13.9
26.67

18.85

20.09

18.53

The following table compiles the key extra data collected on July 12, 2013, by only Dr.
Menzie at ULC, DLC, Neal Branch, 17332, and Ash Fork:28

Tr. at 234.
27
See Joint Exs. 6, 24, 25, 132.
28
See Joint Ex. 133; see also Joint Ex. 135.

44

ULC
Total Dissolved
Solids (g/L)
Turbidity (NTU+)
Embeddedness29
Epifaunal
Substrate33
Sediment
Deposition34
Total RBP Score

DLC

Neal Branch

17332

Ash Fork

1.517

1.201

0.029

0.028

0.022

-12.2
7
(Marginal)30
8
(Marginal)
13
(Suboptimal)
116.5
(Suboptimal)

-50.1
8
(Marginal)31
10
(Marginal)
11
(Suboptimal)
122
(Suboptimal)

-38.5
18
(Optimal)
17
(Optimal)
17
(Optimal)
161
(Optimal)

-43.5
15
(Suboptimal)32
16
(Optimal)
12
(Suboptimal)
147
(Suboptimal)

-39.4
20
(Optimal)
18
(Optimal)
18
(Optimal)
173
(Optimal)

In order to prove that Elk Run has committed at least one violation of its permits, Plaintiffs
must demonstrate, by a preponderance of the evidence, that 1) high conductivity in upper and/or
downstream Laurel Creek is causing or materially contributing to a significant adverse impact to
the chemical or biological components of the creek’s aquatic ecosystems and 2) Elk Run’s White
Castle No. 1 Surface Mine and/or East of Stollings Surface Mine are the cause of—or at least
materially contributing to—this high conductivity.
First, reviewing the conductivity and WVSCI data collected—by the WVDEP, the EPA,
Mr. Hansen, Dr. Swan, Dr. Menzie, Elk Run, and a previous mining company—from the specific

29

0 = poor, 20 = optimal.
Two exhibits prepared by Dr. Menzie conflict regarding the embeddedness rating for ULC. Joint Exhibit 135, the
higher level summary, shows that ULC’s embeddedness rating is “75-100% (Poor)”; however, Joint Exhibit 133 gives
a detailed average score of 7/20 and the higher rating of “Marginal,” which appears to properly correspond with a
score of 7/20. The Court assumes that Dr. Menzie made a mistake when he transferred the detailed score from the chart
in Exhibit 133 to the more generalized chart in Exhibit 135. Thus, the Court credits only the more detailed score and
rating from Exhibit 133.
31
Like with ULC, Joint Exhibits 133 and 135 conflict regarding the embeddedness rating for DLC. Exhibit 135 shows
DLC’s embeddedness rating as “1-25% (Optimal)”; however, Exhibit 133 gives a detailed average score of 8/20 and
the lower rating of “Marginal,” which appears to properly correspond with a score of 8/20. Like with ULC, the Court
credits only the more detailed score and rating from Exhibit 133.
32
Like with ULC and DLC, Joint Exhibits 133 and 135 conflict regarding the embeddedness rating for 17332. Exhibit
135 shows 17332’s embeddedness rating as “1-25% (Optimal)”; however, Exhibit 133 gives a detailed average score
of 15/20 and the lower rating of “Suboptimal,” which appears to properly correspond with a score of 15/20. Like with
both ULC and DLC, the Court credits only the more detailed score and rating from Exhibit 133.
33
0 = poor, 20 = optimal. Scores shown here are taken from Joint Exhibit 133. The epifaunal substrate scores for ULC
and DLC in Joint Exhibit 135 vary slightly from those in Exhibit 133. Like with the embeddedness rating conflicts
between these two exhibits, the Court credits only the score and rating from Exhibit 133.
34
0 = poor, 20 = optimal.
30

45

sites nearby White Castle No. 1 Surface Mine and the East of Stollings Surface Mine which are at
issue in this case, there is a pattern over time whereby conductivity increases and WVSCI scores
decrease. Conductivity in Mudlick Fork, Stolling Fork, and Laurel Creek was historically low, but
since Elk Run’s mines have been operating in the area, conductivity has shot upward dramatically,
to the point where most recent measurements range 35 from approximately 1500 μS/cm to
approximately 3000 μS/cm—and all the way up to approximately 4180 μS/cm—, with only
sporadic exceptions dropping below 1000 μS/cm.36 See Joint Exs. 6, 29, 132; Stip. ¶¶ 6, 17, 19,
22; see also Stip. ¶ 7. Additionally, monitoring data from these two mines’ outfalls since 2007
predominantly show similarly extremely high conductivity levels; thus, the outfalls are
contributing large amounts of the ions which cause high conductivity into Laurel Creek. See Joint
Exs. 5, 30, 31; Stip. ¶¶ 8-9, 20-21; cf. Stip. ¶ 7 (showing historically low conductivity levels for
White Castle No. 1 Surface Mine outfalls). At the same time, WVSCI scores from the area have
decreased, with all scores since 2007 revealing impairment (68 or below). Stip. ¶¶ 10-11; Joint
Exs. 24, 25; see also Stip. ¶ 17-18; cf. Joint Ex. 61 at 3 (A 1992 study conducted in Mudlick Fork,
Stolling Fork, and upper Laurel Creek found that “benthic macroinvertebrate communities were
well-balanced and dominated by pollution-sensitive families.”).
35

As explained by Dr. King, conductivity measurements will vary greatly from moment to moment for a number of
reasons, including precipitation and the amount of water coming out of a nearby outfall at any given time. See Tr. at
231. Thus, the most accurate portrayal of conductivity levels at a particular site is created by taking repeated readings
of conductivity at that site over an extended period of time. See id.
36
In 1982—prior to the creation of both the East of Stollings Surface Mine and the White Castle No. 1 Surface
Mine—sampling in Laurel Creek, into which both mines now ultimately discharge, revealed conductivity levels in the
range of 46 to 807 μS/cm. See Stip. ¶ 6; Joint Ex. 89. In 1991, sampling by Elk Run from three of its White Castle No.
1 Surface Mine outlets revealed conductivity levels in the range of 70.9 to 196 μS/cm; sampling from those same
outlets in 2007 revealed conductivity levels in the range of 1177 to 4460 μS/cm. Stip. ¶¶ 7-8. Sampling through the
present day reveals that these outlets continue to discharge very high levels of conductivity. See id. ¶ 9 & tbl. A
(compiling 2008 to 2013 sampling data from White Castle No. 1 Surface Mine outlets). Also, in 1992, prior to the
creation of the East of Stollings Surface Mine, conductivity measurements in Mudlick Fork, Stolling Fork, and upper
Laurel Creek were all below 100 μS/cm. See Stip. ¶ 17. In 1994, sampling on Mudlick Fork and Stolling Fork
continued to show conductivity levels below 100 μS/cm. See id. ¶ 19. In contrast, conductivity measurements in
Mudlick Fork, Stolling Fork, ULC, and DLC from 2009 to present day are all extremely high, as are 2007 and 2009
conductivity measurements from the East of Stollings Surface Mine outlets. See id. ¶¶ 20-22 & tbl. B; Joint Exs. 6, 29,
132.

46

In addition, taxonomic changes to the benthic macroinvertebrate community in upper and
downstream Laurel Creek reveal that conductivity—and not other potentially confounding factors,
such as habitat—is the primary cause of biological impairment. First, key taxa in unimpacted
Appalachian streams (“reference streams”) which are known to be sensitive to high conductivity
yet not very sensitive to habitat degradation, particularly mayflies (Ephemeroptera)—which were
historically present at Laurel Creek—, are now entirely absent from the creek. Tr. at 255-56,
261-64, 299; see Joint Exs. 26, 27, 61; Pls.’ Ex. 18a; Stip. ¶ 18. Second, taxa known to proliferate
in high conductivity environments—because of reduced predation by and competition for
resources

from

struggling

and/or

extirpated

conductivity-sensitive

taxa—,

chiefly

Hydropsychidae, 37 are present in relatively large numbers in Laurel Creek, to the point of
dominating the benthic macroinvertebrate community there. Tr. at 260-65; see Joint Exs. 27, 45;
Pls.’ Ex. 18a. In his 2012 How Many Mountains Can We Mine? article, Dr. King found ten taxa to
be reliable threshold indicators of high conductivity, meaning that they increased in frequency and
abundance in response to elevated conductivity. Tr. at 265-66. Of those ten taxa, six were found at
DLC, some in relatively large numbers. See Joint Ex. 45. Third, taxa known to be comparatively
tolerant of high conductivity yet very sensitive to habitat degradation, particularly Elmidae, are
also present in Laurel Creek. Tr. at 260-65, 298, 328; see Joint Ex. 27; Pls.’ Ex. 18a. Fourth,
consistent with high conductivity, there is an overall reduction in the abundance of benthic

37

At trial, Defendants insinuated that the testimony of Dr. King—qualified as an expert in aquatic
entomology—regarding the causal link between high conductivity and Hydropsychidae prevalence was not credible
because a summary of field data for Robinson Fork prepared by Plaintiffs’ counsel showed extremely low pre-mining
conductivity—40 μS/cm—from 1977 coupled with Hydropsychidae as the “dominant taxa.” Tr. at 299-303; Defs.’
Ex. 128; see also Tr. at 127-28. Later, upon closer examination of the underlying data, Dr. King pointed out that 1) the
collecting method used in 1977 was not that which is required for WVSCI, so comparison is inapposite and 2) the data,
itself, is very coarse—with the collector marking merely “X” for present and “A” for abundant and notating no further
quantitative data—, so the information collected then is of limited value today. See Tr. at 322-23; see also Joint Ex.
117. Given the imprecise collection methodology used for this 1977 survey, the Court gives it little weight. The Court
instead credits Dr. King’s scientific judgment regarding the causal link between high conductivity and the increased
prevalence of Hydropsychidae, based upon his expertise in the area.

47

macroinvertebrates collected at Laurel Creek, such that Dr. King described the Fall 2012
collection numbers for both ULC and DLC as “depauperate” and the Spring 2013 collection
numbers for these sites as still very low. Tr. at 228-30; see Joint Exs. 24, 25, 27; Pls.’ Ex. 18a.
Dr. Menzie—whom Defendants hired only to “critique the technical basis for [P]laintiffs’
experts arriving at the conclusions they did” regarding conductivity causing biological impairment
at Laurel Creek and Robinson Fork and not to conduct any causal analysis himself—presented
several potential “confounding factors” which, in his opinion, had not been adequately ruled out
by Dr. Palmer and Dr. King before they concluded that conductivity was causing biological
impairment at these sites. Tr. at 354-55, 382-83. Using photographs and videos he took at ULC and
DLC, Dr. Menzie testified that, unlike the reference streams, 1) ULC had an open canopy,
contained lots of silt from the adjacent haul road, and had periphyton all over the rocks and 2) DLC
had a partly open canopy, was one of the warmest sites overall, and contained lots of silt, which
had gathered on rocks and on the bottom of the creek. Id. at 371-77; see Joint Exs. 123e-f, l-o, t-u.
Dr. Menzie opined that, based upon his preliminary work, temperature, pH, and
siltation—particularly siltation which has built up between the rocks on the bottom of the creek,
called embeddedness—are all potential causes, along with conductivity, for the biological
impairment at these sites. Tr. at 256, 379-81, 411; see also Joint Exs. 132, 133, 135.
Regarding the temperatures and canopy cover observations collected by Dr. Menzie at
ULC and DLC, Dr. King testified that, unequivocally, neither are sufficient to cause the level of
biological impairment seen at these sites. Tr. at 238-39, 247-48, 445. Additionally, he noted that
snapshot temperatures taken at different times from different streams are quite useless since water
temperature changes from minute-to-minute and day-to-day and that suggesting, based upon these
temperature readings, that the level of impairment seen at ULC and DLC could be caused by high

48

water temperature is simply not good science. Id. at 238-39, 247, 444-45; see also id. at 407-08.
Dr. Palmer noted that the temperature data for these sites is “well within the temperature tolerance
range of organisms in this system,” so no scientist familiar with this ecosystem would consider
those temperatures to be noteworthy. See id. at 405, 426-28. Additionally, the EPA’s Benchmark
found that, in Appalachian streams with high temperatures (over 22ºC) but also low conductivity
levels (less than 200 μS/cm), mayflies would be present 100% of the time. Additionally, mayflies
would be found 99% of the time at such streams with low temperatures (under 17ºC) but also low
conductivity. EPA’s Benchmark at B-21. However, despite that ULC and DLC displayed low
temperatures during Dr. Swan’s sampling trips and despite Dr. Menzie’s opining that high
temperatures could be the cause of impairment based upon the high temperatures he took in July
2013, absolutely no mayflies were found at ULC and DLC on either of Dr. Swan’s collecting trips.
See Tr. at 257, 440-41, 448-49; Joint Exs. 6, 26, 27, 132; Pls.’ Ex. 18a.
Regarding the pH and total dissolved solids data collected by Dr. Menzie, Dr. King
testified that neither metric can be viewed in isolation from the conductivity data as potential
“confounding” factors because 1) conductivity measures the electrical current created by dissolved
ions, 2) total dissolved solids measures the mass of those same ions, and 3) pH is a functional
component of conductivity, such that it should increase when water contains extra
bicarbonate—one of the component ions which is measured by conductivity. Tr. at 241-42,
443-44. Additionally, Dr. Palmer testified that the pH data for ULC and DLC are well within the
tolerance range of the organisms in these streams. See id. at 405.
Regarding the sedimentation RBP scores given to ULC and DLC by Dr. Menzie, Dr.
Palmer noted that they are, overall, “not that bad,” given that both scores merit a rating of
“suboptimal,” which is ranked just below the best rating (“optimal”) and above the remaining

49

ratings of “marginal” and “poor.” See id. at 409; see also Joint Ex. 133. In fact, one of the reference
streams, 17332, was given a sedimentation score of 12 by Dr. Menzie, while ULC and DLC’s
sedimentation scores are 13 and 11, respectively. Joint Ex. 133. Additionally, the EPA’s
Benchmark found that, in Appalachian streams with low embeddedness scores (less than 7—lower
than the scores of 7 and 8 from ULC and DLC) but also low conductivity levels (less than 200
μS/cm), mayflies would be present 95% of the time; however, no mayflies were found at either site
during both of Dr. Swan’s collecting trips. See EPA’s Benchmark at B-15; Joint Exs. 26, 27, 133;
Tr. at 256-57, 439-40; Pls.’ Ex. 18a.
While reviewing the same photos of ULC and DLC about which Dr. Menzie testified, Dr.
King stated that he did not see any real sedimentation problem in these streams; instead, what he
saw was calcium carbonate precipitate—with which he is very familiar based upon his studies of
streams in Texas where such precipitate is common—, which is caused by the ions measured by
conductivity coming out of solution and solidifying onto the rocks. See Tr. at 243-46, 292-93. Dr.
King further testified that what Dr. Menzie had testified was siltation could not be, since fine
sediment gathers in the interstitial spaces between rocks but the areas between the rocks in these
pictures were clear; instead, the photos revealed calcium carbonate precipitate on top of the rocks,
where fine sediment does not normally attach. See id. at 244-46. Dr. King further noted that
periphyton, which is a community of algae, bacteria and fungi that attaches to rocks, is normal in
streams. Id. at 242. Dr. Palmer agreed with Dr. King on all of these points, also noting the
chalkiness of the water at these sites, which is characteristic of high conductivity, and stating that a
certain amount of siltation is entirely normal. See id. at 134, 145-46, 190, 412-16, 418-23.
Regarding the overall RBP scores gathered by Dr. Menzie for ULC and DLC—which fell
within the suboptimal category—, Dr. King testified that Appalachian streams commonly fall

50

within the suboptimal category and noted that even one of Dr. Menzie’s reference sites, 17332,
received a score of suboptimal. Id. at 235-36; see Joint Ex. 133. Dr. King also stated that the
purpose of RBP is to determine, when there is biological impairment at a site, whether habitat
could be the reason for such impairment; however, in his professional experience, he has never
seen scores in this range resulting in the level of biological impairment seen at these sites. Tr. at
237, see also Tr. at 446. Dr. Palmer stated that a suboptimal habitat score is not something that
would worry her and that, to give context, in some of the impaired streams in which she works
which are slated for restoration, the total habitat scores are 25 or 30, not 116.5 and 122, like ULC
and DLC. See id. at 409-10; Joint Ex. 133. Additionally, the EPA’s Benchmark found that, in
Appalachian streams with low total habitat scores (less than 115—lower than the scores at these
sites) but also low conductivity levels (less than 200 μS/cm), mayflies would be present 99% of the
time; however, no mayflies were found at either ULC or DLC during both of Dr. Swan’s sampling
trips. See EPA’s Benchmark at B-11; Tr. at 438-39; Joint Exs. 26, 27, 133; Pls.’ Ex. 18a.
Despite reviewing all of the information gathered by Dr. Menzie, both Dr. King and Dr.
Palmer continued to conclude that habitat—including temperature, pH, and siltation—simply was
not the cause of biological impairment at these sites.38 Tr. at 246-47, 255-56, 290, 410, 424,
428-29, 432-33, 436-37, 446. Dr. Palmer also testified that, unlike the habitat data, the differences
in conductivity between the reference sites and ULC and DLC are huge, “on the order of
magnitude that far exceed what [she] kn[ows] from the literature to impact biota in [such]

38

At trial, Defendants repeatedly stressed that neither Dr. Palmer nor Dr. King personally visited any of the sites at
issue in this case. See, e.g., Tr. at 144-46, 149, 429-32. However, when Dr. Menzie testified regarding his site visits, he
came to conclusions based upon the data he gathered, using the photographs and videos he took on site. Dr. Palmer and
Dr. King merely did the same. Given Dr. Palmer and Dr. King’s prior experiences conducting fieldwork in
Appalachian streambeds—unlike Dr. Menzie—, the Court is unconvinced by Defendants’ insinuation that the
testimony of these experts should not be credited simply because they did not visit the sites in person. Id. at 384-85.

51

streams.” See id. at 405. Given their extensive experience in this area, the Court credits Dr. Palmer
and Dr. King’s expert testimony.
At trial, Defendants attempted to rebut the specific causation element of Plaintiffs’ case
regarding both sites by claiming that, contrary to the EPA’s CADDIS method for determining the
cause of biological impairment, Dr. Palmer and Dr. King improperly converted general causation
literature regarding conductivity and impairment into specific causation findings at each site
without adequately assessing and ruling out other potential causative factors, such as habitat. See,
e.g., id. at 129-132, 157-159. Defendants specifically point to step two of the multi-step causal
analysis which requires that, after defining the case, the assessing scientist should “list the
candidate causes” of impairment. Id. at 131; see Defs.’ Ex. 18 at CADDIS000015. Defendants
argue that both Dr. Palmer and Dr. King failed to list any candidate cause except for conductivity,
and later, when Dr. Menzie’s report listed other candidate causes, Dr. Palmer and Dr. King
continued to fail to adequately assess those other potential causes since they had already decided
upon conductivity as the cause, based solely upon their knowledge of the general causation
literature related to this case. See Defs.’ Post-Trial Brief at 14-15, ECF No. 107. Defendants
further point to Step 4 of the CADDIS method—“Evaluate Data from Elsewhere”—which states:
Data from elsewhere may include information from other sites within the region;
stressor-response relationships derived from field or laboratory studies; studies of
similar situations in other streams, and numerous other kinds of information. . . .
You cannot use evidence developed using data from elsewhere to eliminate a
particular candidate cause; this evidence is used only to compare the strength of
evidence associated with each cause.
See Defs.’ Ex. 18 at CADDIS000047.
Plaintiffs point to the EPA’s “Stressor Identification Guidance Document,” which further
explains how to apply the CADDIS method. See Tr. at 188. In its section regarding how to develop
a list of candidate causes, the Document states:
52

Where multiple stressors contribute to cause an effect, the stressor that makes the
largest contribution is the principal cause. Usually a principal cause is so dominant
that removing the other causes has no effect on the condition of the resource. For
example, if the benthic habitat is both physically altered and chemically
contaminated, restoring the physical habitat may have no effect until the chemical
contamination is removed. In this situation chemical contamination is the principal
cause. The habitat alteration is still a cause of impairment, but it is ancillary and
masked by the toxic impact.
See id. Dr. King stated that this was precisely his reasoning regarding the specific causation of
impairment at the sites in this case. Id. at 442. Based upon the scientific literature and his
experience, he believes that, if the habitat at the sites was perfect, conductivity would still cause
impairment and that, if conductivity at the sites were reduced to below 300 μS/cm, over time these
streams would come to be unimpaired; thus, conductivity is the principal cause of biological
impairment at these sites. See id.
Dr. Palmer also stressed that, though CADDIS is a reasonable approach to a causation
problem which is based upon the scientific method, it is not the sole method used by scientists
when assessing the specific causation of impairment. Id. at 129-132. To the contrary, CADDIS is
most appropriate when evaluating a problem in an unexplored area of research, where the
evaluator has no baseline research off of which to work. See id. at 402. In the instant situation, a
large amount of preliminary research in this area had already been done, so the baseline pointed to
one factor—conductivity—which was likely to trump all of the others. Id. at 402-403. In this way,
science builds upon prior science; a scientist need not re-create the wheel during every project.
Given their extensive expertise in this area, the Court continues to credit Dr. Palmer and Dr.
King’s testimony about the specific causation of impairment at these sites, regardless of the fact
that they did not explicitly use the nonexclusive CADDIS method for their analysis.
Defendants also attempt to discredit Dr. Palmer and Dr. King’s expert testimony by
labeling them “advocates.” First, they note that Dr. Palmer has testified for the Sierra Club a
53

number of times, that she recommended in her 2010 Science paper that no new surface mining
permits be granted, and that she appeared on the television show The Colbert Report. Id. at 132.
Second, Defendants note that, in 2012, Dr. King submitted a comment to the WVDEP during an
open comment period on West Virginia’s 2012 303(d) list which expressed concerns with the use
of 60.6 as the WVSCI threshold—concerns which were clearly shared by the EPA. Id. at 308-10;
see Defs.’ Ex. 123. The Court is not persuaded by these attempts at impeachment. Throughout
their testimony, Dr. Palmer and Dr. King spoke in terms of scientific literature and findings, and
Defendants failed to even minimally rebut the science supporting their testimony. The Court thus
credits Dr. Palmer and Dr. King’s expert testimony as based upon scientific research, not bias.
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 1) high conductivity in upper and downstream Laurel Creek is causing—or, at the
very least, materially contributing to—a significant adverse impact to the chemical and biological
components of the creek’s aquatic ecosystems and 2) Elk Run’s White Castle No. 1 Surface Mine
and/or East of Stollings Surface Mine are the cause of—or, at the very least, materially
contributing to—this high conductivity. The Court thus FINDS that Plaintiffs have proven that Elk
Run has committed at least one violation of its permits.
b.

Alex Energy: Robinson Fork Area Sampling

Alex Energy operates the Robinson North Surface Mine and the Wildcat Surface Mine,
both in Nicholas County, West Virginia. Stip. ¶¶ 23, 45. Each mine is regulated both by
WV/NPDES permits and by West Virginia Surface Mining Permits issued by the WVDEP under
the CWA and the SMCRA. Id. ¶¶ 27, 47. The Robinson North Surface Mine has four valley fills
that discharge from Outlets 001, 002, and 003 into Robinson Fork. Id. ¶ 26. The Wildcat Surface

54

Mine has a large valley fill which discharges from Outlet 004 into an unnamed tributary of
Robinson Fork and from Outlet 007 into Wildcat Hollow, also a tributary of Robinson Fork. Id.
¶ 46.
On May 1, 2013, Mr. Hansen collected water samples 1) directly from Robinson North
Surface Mine Outfalls 001 and 003, which empty into Robinson Fork, and 2) from an instream
sample site on downstream Robinson Fork (“DSRF”), very close to where Robinson Fork drains
into Twentymile Creek and downstream from the outfalls of both the Robinson North Surface
Mine and the Wildcat Surface Mine. Tr. at 36-40. While on site, he documented the temperature,
conductivity, dissolved oxygen, and pH of the water from which he collected the samples. Tr. at
41; Joint Exs. 7-8.
On September 20, 2012, and on May 1, 2013, Dr. Swan collected biological samples from
DSRF and calculated WVSCI scores from those samples. Tr. at 8, 18-19, 43; Joint Exs. 24-27;
Pls.’ Ex. 18a; Defs.’ Ex. 128 at 7. On September 20, 2012, he also collected water samples at that
site and documented the temperature, conductivity, dissolved oxygen, and pH of the water from
which he collected the samples. Tr. at 39, 45; Joint Ex. 8.
On July 12, 2013, Dr. Menzie visited DSRF and, as explained earlier, three reference
sites—Neal Branch, 17332 and Ash Fork—all of which drain into Twentymile Creek at different
points. Tr. at 364-66, 371; Joint Ex. 128. Dr. Menzie also gathered data from Twentymile Creek
just upstream from the mouth of Robinson Fork. Tr. at 366; Joint Ex. 132. At each of the four key
sites, Dr. Menzie took photographs, assessed habitat—including embeddedness, epifaunal
substrate, substrate (sedimentation), and canopy cover—using RBP, and gathered temperature,
conductivity, total dissolved solids, pH, turbidity, and dissolved oxygen data directly from the
stream. Tr. at 364-65, 367, 369, 381; Joint Exs. 123, 132, 135.

55

The following table compiles the key data collected at DSRF, Twentymile Creek, Neal
Branch, 17332, and Ash Fork by each of the three samplers:39
DSRF
WVSCI:
Swan (9/20/12)
Swan (5/1/13)
Conductivity
(μS/cm):
Swan (9/20/12)
Hansen (5/1/13)
Menzie (7/12/13)
pH:
Swan (9/20/12)
Hansen (5/1/13)
Menzie (7/12/13)
Temperature (ºC):
Swan (9/20/12)
Hansen (5/1/13)
Menzie (7/12/13)

Twentymile
Creek

Neal Branch

17332

Ash Fork

52.44
48.65

-

-

-

-

2,025
1,892
1,638

1,227

40

39

29

7.6
7.9
8.12

7.84

6.98

6.96

6.63

18.8
19.1
23.34

22.05

18.85

20.09

18.53

The following table compiles the key extra data collected on July 12, 2013, by only Dr.
Menzie at ULC, DLC, Neal Branch, 17332, and Ash Fork:40

39
40

See Joint Exs. 8, 24, 25, 132.
See Joint Ex. 133; see also Joint Ex. 135.

56

DSRF
Total Dissolved
Solids (g/L)
Turbidity (NTU+)
Embeddedness41
Epifaunal
Substrate43
Sediment
Deposition44
Total RBP Score

Twentymile
Creek

Neal Branch

17332

Ash Fork

1.1

0.845

0.029

0.028

0.022

-49
16
(Optimal)42
11
(Suboptimal)
13
(Suboptimal)
125.5
(Suboptimal)

-48.8

-38.5
18
(Optimal)
17
(Optimal)
17
(Optimal)
161
(Optimal)

-43.5
15
(Suboptimal)
16
(Optimal)
12
(Suboptimal)
147
(Suboptimal)

-39.4
20
(Optimal)
18
(Optimal)
18
(Optimal)
173
(Optimal)

-

In order to prove that Alex Energy has committed at least one violation of its permits,
Plaintiffs must demonstrate, by a preponderance of the evidence, that 1) high conductivity in
downstream Robinson Fork is causing or materially contributing to a significant adverse impact to
the chemical or biological components of the stream’s aquatic ecosystems and 2) Alex Energy’s
Robinson North Surface Mine and/or Wildcat Surface Mine are the cause of—or at least materially
contributing to—this high conductivity.
Reviewing the conductivity and WVSCI data collected—by Alex Energy, the WVDEP,
Mr. Hansen, Dr. Swan, and Dr. Menzie—from the specific sites nearby the Robinson North
Surface Mine and the Wildcat Surface Mine which are at issue in this case, there is a clear pattern
over time whereby conductivity increased and WVSCI scores decreased. Conductivity in
Robinson Fork was historically very low,45 but since Alex Energy’s mines have been operating in
the area, conductivity has shot upward dramatically, to the point where most recent measurements
41

0 = poor, 20 = optimal.
Like with ULC, DLC, and 17332, Joint Exhibits 133 and 135 conflict regarding the embeddedness rating for DSRF.
Exhibit 135 shows DSRF’s embeddedness rating as “25-50% (Suboptimal)”; however, Exhibit 133 gives a detailed
average score of 16/20 and the higher rating of “Optimal,” which appears to properly correspond with a score of 16/20.
Like with ULC, DLC, and 17332, the Court credits only the more detailed score and rating from Exhibit 133.
43
0 = poor, 20 = optimal.
44
0 = poor, 20 = optimal.
45
A 1977-78 survey, which Defendants represented at trial to have been conducted pre-mining in the area, reported
the conductivity in Robinson Fork on November 2, 1977, December 1, 1977, and March 9, 1978, to be 40 μS/cm, 42
μS/cm, and 35 μS/cm, respectively. Tr. at 299, 302; Joint Ex. 117 at 51, 62.
42

57

range from approximately 1500 μS/cm to approximately 3000 μS/cm—and all the way up to
approximately 4240 μS/cm. Joint Exs. 8, 37, 117, 132; Stip. ¶¶ 32, 39, 42-44; Defs.’ Ex. 128; Tr. at
91, 299, 302; see also Stip. ¶¶ 30-31. Additionally, recent monitoring data from these two mines’
outfalls show similarly extremely high conductivity levels; thus, the outfalls are contributing large
amounts of the ions which cause high conductivity into Robinson Fork. See Joint Exs. 7, 38, 39;
Stip. ¶¶ 35-38, 41, 50-54. At the same time, WVSCI scores from the downstream Robinson Fork
area have clearly decreased over time, with no passing score (above 68) since 2003 and recent
scores in the 50 to 60 range. Joint Exs. 24, 25; Stip. ¶¶ 40, 42, 44.
At trial, Defendants attempted to rebut both the general causal relationship between
conductivity and low WVSCI scores and the specific causal relationship between those two
variables at Robinson Fork by pointing, first, to a prediction made in Dr. King’s initial expert
report and, second, to several specific measurements over time at Robinson Fork which did not fit
this prediction. See Tr. at 284-88. Dr. King’s expert report states:
Streams and outfalls influenced by mining in the Mudlick/Laurel Creek and
Robinson Fork drainages have measured conductivity levels that far exceed the US
EPA conductivity benchmark of 300 μS/cm and the WVSCI-conductivity
threshold as reported in Bernhardt et al. (2012) of 308 μS/cm (245-385 μS/cm, 95%
confidence interval of threshold). Most observations exceed 1000 μS/cm, with some
>2000 μS/cm. WVSCI scores based on these conductivities and the empirical
relationships reported by Bernhardt et al. (2012) are predicted to be approximately
50-60, well below the biological impairment threshold of 68. Indeed, 2012 benthic
macroinvertebrate samples collected by Dr. Chris Swan resulted in WVSCI scores
of 53.45 (Mudlick), 57.83 (DLC), and 57.32 (Robinson), all well below the
biological impairment threshold and within the range predicted by the
conductivity-WVSCI model in Bernhardt et al. (2012).
Defs.’ Ex. 4 (emphasis added). Thus, the report predicts that conductivity levels primarily ranging
from 1000 μS/cm to 2000 μS/cm will likely correspond with WVSCI scores which fall within the
range of 50-60.

58

While cross-examining Dr. King regarding this prediction, Defendants drew attention to a
table of Robinson Fork sampling data which was compiled by Plaintiffs’ counsel. See Defs.’ Ex.
128 at 8-9. Defendants highlighted multiple WVSCI scores above 60 in the table, which,
Defendants argued, undermined Dr. King’s prediction that conductivity readings of 1000 μS/cm
and above would correspond with WVSCI scores which fall within the range of 50-60. See Tr. at
285-90; see also Defs.’ Ex. 128 at 8-9 (highlighting all WVSCI scores above 60 in green and
yellow).46 Importantly, Dr. King repeatedly explained that the report’s prediction means only that,
on average, conductivity readings of 1000-2000 μS/cm will correspond with WVSCI scores
which fall within the range of 50-60. Tr. at 286-89, 317, 337-38. Using the specific table of
conductivity and WVSCI scores upon which Defendants focused at trial, the average of all 29
WVSCI scores which corresponded with a conductivity reading above 1000 μS/cm—the cutoff
Defendants purported to use at trial—is 54.07, almost precisely in the middle of the 50-60 range
predicted by Dr. King. 47 See Defs.’ Ex. 128 at 8-9. Contrary to Defendants’ argument, this
verification of Dr. King’s scientific prediction—derived from his 2012 How Many Mountains Can
We Mine? article—by independent data specific to this case strengthens 1) the general evidence
that high conductivity causes low WVSCI scores, 2) the specific evidence that high conductivity is
causing low WVSCI scores at Robinson Fork, and 3) Dr. King’s credibility as an expert in this
area.
46

Oddly, Defendants drew attention to several WVSCI scores above 60 which should have been excluded from the
data set in order to conform with the parameters of Dr. King’s prediction; this included a score which correlated with
a conductivity level below 1000 μS/cm and four WVSCI scores for which there was no corresponding conductivity
data whatsoever. Tr. at 286-88; see Defs.’ Ex. 128 at 8. Defendants also neglected to mention eight WVSCI scores
which fell below the 50-60 range. See Defs.’ Ex. 128 at 8.
47
Additionally, the Court notes that the overwhelming majority of the WVSCI scores included in the Robinson Fork
table are failing scores. See Defs.’ Ex. 128 at 8-9. Out of the 39 WVSCI scores included in the table—measured from
Fall 1999 through Fall 2012—only 6 of those scores are passing scores, with the most recent passing score occurring
in Fall 2003. See id. At PMC 10—the sampling site with the most data points in the table and at which sampling was
the most regularly conducted—, this pattern of consistently failing WVSCI scores is most pronounced: from 1999
through 2012, with conductivity scores consistently in the approximately 1000 μS/cm to approximately 2300 μS/cm
range, only 2 out of 20 recorded WVSCI scores were passing scores. See id.

59

In another attempt to rebut both the general causal relationship between conductivity and
low WVSCI scores and the specific causal relationship between those two variables at Robinson
Fork, Defendants drew attention to the fact that, despite consistently high conductivity
scores—mostly between 1000 μS/cm and 2000 μS/cm—, some of the WVSCI scores recorded at
Robinson Fork in the early 2000s were passing scores (above 68). Tr. at 112-13; see Defs.’ Ex. 128
at 8; see also Tr. at 159-60, 162-63. Next, Defendants drew attention to a particular sampling site,
PMC 16, located in Robinson Fork about 1.5 miles upstream from the confluence of Robinson
Fork and Twentymile Creek—well upstream of DSRF—which, despite consistently high
conductivity scores of mostly between 1000 μS/cm and 2000 μS/cm, periodically receives passing
WVSCI scores, about every 1 to 4 years, with only one barely passing score since 2006. Tr. at
118-120; see Defs.’ Ex. 52 at Alex008218, Alex008237; Defs.’ Ex. 53 at Alex008109; see also Tr.
at 174. Third, Defendants drew attention to another sampling site, PMC 7, located in Twentymile
Creek, about 200 feet downstream of its confluence with Robinson Fork, which, despite high
conductivity levels over 13 years—with a dip in levels below 1000 μS/cm from 2002 to 2006—,
received many passing WVSCI scores, until its last passing score in 2007. Tr. at 121-22; see Defs.’
Ex. 52 at Alex008218, Alex008238; Defs.’ Ex. 53 at Alex008109. Fourth, Defendants drew
attention to two other sampling sites, PMC 5 and 6, located in Twentymile Creek, substantially
downstream from the creek’s confluence with Robinson Fork, which, despite high conductivity
levels, received many initially passing WVSCI scores for 4 to 5 years, but which have not garnered
a passing WVSCI score since 2004. Tr. at 123-24; see Defs.’ Ex. 52 at Alex008217, Alex008219,
Alex008236; Defs.’ Ex. 53 at Alex008109; see also Tr. at 172-74. Finally, Defendants drew
attention to two other sampling sites, HWB-2 and HWB-8, located, respectively, 1) even farther
downstream in Twentymile Creek than PMC 5 and 6 and 2) up a different tributary to the creek,

60

which, despite high conductivity, have shown sporadic passing WVSCI scores. Tr. at 125-26; see
Defs.’ Ex. 52 at Alex008217, Alex008233-34; Defs.’ Ex. 53 at Alex008106.
Dr. King provided sound explanations, consistent with the science on the subject, for
variation in WVSCI scores despite consistently high conductivity measurements. First, he noted
that almost all of the recent, sporadically-passing WVSCI scores at these seven sites are barely
passing scores48 and that many of the passing scores occurred in the fall.49 See Tr. at 325, 327.
Importantly, according to Dr. King, a score in the low 70s is not much better than a score of 68, and
Tetra Tech—the company which developed WVSCI—recommended sampling in the spring
because impairment was much more reliably detected during spring than during fall. See id. at 325,
327, 329, 338-39. Second, Dr. King described an important phenomena studied by Dr. Pond
whereby neighboring tributaries with no mining or minimal mining feed the stream at which a
WVSCI score is calculated with drifting organisms; because conductivity is not acutely toxic but
is, instead, a chronic stressor which gradually extirpates entire populations, these drift organisms
can survive long enough—though only temporarily—to be collected at the degraded site,
deceptively boosting the WVSCI score. See id. at 325-26, 344. Third, because of the chronic
nature of conductivity as a stressor, the complete extirpation of benthic macroinvertebrates in a
stream with high conductivity may take years; thus, there is a gradual decrease in WVSCI scores

48

The Court notes that this pattern is apparent from the data. The Robinson Fork data aggregated in Defendants’
Exhibit 128 shows no passing score since 2003, despite the fact that 19 WVSCI scores were recorded over the course
of the 9 years since this passing score was recorded. See Defs.’ Ex. 128. At PMC 16, the only passing score out of the
5 scores recorded since 2006 is a 68.4. See Defs.’ Ex. 52 at Alex008237. At PMC 7, despite high early WVSCI scores,
only one passing WVSCI score, a 75, was garnered in the final seven years of data, which was comprised of 8 scores.
See id. at Alex008238. PMC 5 has received no passing WVSCI score since 2004, despite the fact that 5 scores were
calculated there since that time. See id. at Alex008236. PMC 6 has received no passing score since 2003, despite the
fact that 10 scores were calculated there since that time. See id. At HWB-2, only 2 scores—68.7 and 68.8—out of the
9 scores collected since 2004 have been passing scores. See id. at Alex008233. At HWB-8, only one score—a
69.7—out of the 5 collected since 2006 was a passing score. See id. at Alex008234.
49
The Court notes that this is most clearly illustrated by PMC 16—the site with the most sporadically fluctuating
WVSCI scores of all of the sites targeted by Defendants. Out of the 19 total scores collected from 1999 to 2012, 6 were
passing scores; 4 such scores were collected in the fall and 2 were collected in the spring. See Defs.’ Ex. 52 at
Alex008237. On the whole, the fall scores are also higher than the spring scores. See id.

61

over time—reflected in the data at all of these sites—, whereby scores begin high and gradually
reduce down to chronically failing scores. Id. at 326, 339-42; see Defs.’ Ex. 52 at Alex008233-34,
-36-38; Defs.’ Ex. 128 at 8-9. Additionally, Dr. Palmer noted that, since there is always variation
in data, the pattern of conductivity causing impairment has been scientifically proven on the whole
and not necessarily for every specific data point. See Tr. at 180-81. According to the EPA’s
Benchmark, at 500 μS/cm, the probability of impairment is 72%; thus, 28% of WVSCI scores
collected from streams with conductivity readings at 500 μS/cm will still be passing scores. See
EPA’s Benchmark at A-36; Tr. at 181. Accordingly, even at high conductivity readings like those
collected in this case, there will still be some passing WVSCI scores. See Tr. at 181-82, 252. Based
upon the compelling nature of the patterns in the evidence, the science involved, and the theories
presented—along with Dr. King and Dr. Palmer’s extensive experience in the area—, the Court
credits Dr. King and Dr. Palmer’s explanation for such sporadic, primarily older variation in the
data.
Taxonomic changes to the benthic macroinvertebrate community in downstream Robinson
Fork reveal that conductivity—and not other potentially confounding factors, such as habitat—is
the primary cause of biological impairment. Key taxa in unimpacted Appalachian streams which
are known to be sensitive to high conductivity yet not very sensitive to habitat degradation,
particularly mayflies—which were historically present at Robinson Fork—, are now almost
entirely absent from the creek.50 Tr. at 255-56, 262-65, 299, 323; Joint Exs. 26, 27, 117; Pls.’ Ex.
18a; see also Stip. ¶ 33. Additionally, taxa known to proliferate in high conductivity environments,

50

At trial, Defendants pointed out that two individual mayflies were collected at DSRF in spring 2013, one using the
WVSCI collection protocol and one using a multi-habitat collection protocol. See Tr. at 297; Joint Ex. 27. Dr. King
noted that one of the two mayflies found was from the genus Acentrella, which is one of the most conductivity-tolerant
genera of mayflies. See Tr. at 297, 333. Given the extremely low number of mayflies found—just two
individuals—and given that no mayflies were found at this site in the fall, the Court, like Dr. King, does not find this
evidence to be particularly significant.

62

chiefly Hydropsychidae, are present in relatively large numbers in Robinson Fork, to the point of
dominating the benthic macroinvertebrate community there. Tr. at 260, 263, 265; Joint Exs. 27,
45; Pls.’ Ex. 18a. Of the ten taxa found by Dr. King to be reliable threshold indicators of high
conductivity, nine were found at DSRF, some in large numbers. See Tr. at 265-66; Joint Ex. 45.
Also, taxa known to be relatively tolerant of high conductivity yet very sensitive to habitat
degradation, particularly Elmidae, are abundant in Robinson Fork.51 Tr. at 261-64, 298, 328; see
Joint Ex. 27; Pls.’ Ex. 18a.
Dr. Menzie again presented the same three potential “confounding factors” which, in his
opinion, had not been adequately ruled out by Dr. Palmer and Dr. King before they concluded that
conductivity was causing biological impairment at Robinson Fork: temperature, pH, and
siltation—particularly embeddedness caused by siltation. Tr. at 354-55, 379-83; see also Joint
Exs. 132, 133, 135. Using photographs and videos he took at DSRF, Dr. Menzie testified that,
unlike the reference streams, DSRF had an open canopy and all of the rocks were covered in plant
growth which was collecting particulate matter that was getting into the stream through haul roads
and bare, tree-free areas. Tr. at 371, 375-78; see Joint Exs. 123d, p-q, v-w.
Regarding the temperature and canopy cover observations collected by Dr. Menzie at
DSRF, like with that at ULC and DLC, Dr. Palmer and Dr. King both testified that neither is
sufficient to cause the level of biological impairment seen at this site. Id. at 238-39, 247-48, 405,
445. Also like with ULC and DLC, Dr. King testified that pH and total dissolved solids cannot be
considered “confounding” factors because they are directly linked to conductivity levels, such that
an increase in conductivity will result in an increase in both pH and total dissolved solids. See id. at
241-42, 443-44. Dr. Palmer also testified that the pH collected at DSRF is well within the tolerance
51

Dr. King noted that an extremely large number of Elmidae were found at DSRF. Tr. at 262. Of the 682 organisms
collected at DSRF using the WVSCI collection protocol in fall 2012, 346—more than half—were of the family
Elmidae. See Pls.’ Ex. 18a.

63

range of the organisms in the stream. See id. at 405. Just as with ULC and DLC, Dr. Palmer
testified that the sedimentation RBP score of 13 given to DSRF by Dr. Menzie could not result in
the biological impairment seen at this site. Id. at 409-10; see also Joint Ex. 133. One of the
reference streams, 17332, was given the lower sedimentation score of 12 by Dr. Menzie. Joint Ex.
133. Also, the embeddedness score of 16 at Robinson Fork is rated optimal and is higher than the
suboptimal score of 15 at 17332. See id.
As with ULC and DLC, while reviewing the same photos of DSRF about which Dr.
Menzie testified, Dr. King stated that he did not see any real sedimentation problem in the stream;
instead, what he saw was periphyton—normal in streams—and calcium carbonate precipitate
caused by high conductivity. See Tr. at 242-43. Dr. Palmer agreed with Dr. King on all of these
points, also noting the chalkiness of the water at these sites, which is characteristic of high
conductivity, and stating that a certain amount of siltation is entirely normal. See id. at 134,
145-46, 190, 412-16, 418-23. Regarding the overall RBP score gathered by Dr. Menzie for
DSRF—125.5, which fell within the suboptimal category—, Dr. King testified that Appalachian
streams commonly fall within the suboptimal category and noted that even one of the reference
sites, 17332, received a suboptimal rating. Tr. at 235-36. Dr. King also stated that he has never
seen scores in this range resulting in the level of biological impairment seen at this site.52 Id. at
237, see also id. at 446. Dr. Palmer, in essence, agreed. See id. at 409-10.
As with ULC and DLC, despite reviewing all of the information gathered by Dr. Menzie,
Dr. King and Dr. Palmer both continued to conclude that habitat—including temperature, pH,
52

Specifically, in September 2012 and in May 2013, DSRF received the extremely poor, failing WVSCI scores of
52.44 and 48.65, respectively. See Joint Exs. 24, 25. However, very recently thereafter, in July 2013, DSRF received
the relatively high “suboptimal” overall RBP score. See Joint Ex. 133. Given the expert testimony in this case, the
Court finds it very unlikely that habitat scoring in the “suboptimal” range could be the cause of these extremely low
WVSCI scores. In fact, all of the individual RBP scores for DSRF—other than those for “riparian zone width,” which
was never suggested by Dr. Menzie to be a possible confounding factor in this case—were either “optimal” or
“suboptimal,” with 5 out of the 12 scores assessed at DSRF falling in the “optimal” range. See id.

64

siltation, and embeddedness—simply was not the cause of biological impairment at these sites. Tr.
at 246-47, 255-56, 290, 410, 424, 428-29, 432-33, 436-37, 446. Given their extensive experience
in this area, the Court credits Dr. Palmer and Dr. King’s expert testimony.
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 1) high conductivity in downstream Robinson Fork 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 ecosystems53 and 2) Alex Energy’s Robinson North Surface
Mine and/or Wildcat Surface Mine are the cause of—or, at the very least, materially contributing
to—this high conductivity. The Court thus FINDS that Plaintiffs have proven that Alex Energy
has committed at least one violation of its permits.
IV.

CONCLUSION

In multiple ways, the chemical and the biological components of the aquatic ecosystems
found in Laurel Creek and Robinson Fork have been significantly adversely affected by
Defendants’ discharges. The water chemistry of these streams has been dramatically altered,
containing levels of ionic salts—measured as conductivity—, which are scientifically proven to be
53

Though this Court has already rejected the notion that the WVDEP in any way adopted the three-part test from
H.C.R. 111 or that the Court should defer directly in any manner to H.C.R. 111 or the prospective instruction to the
WVDEP regarding the test which was given by the legislature in S.B. 562, the Court notes that the extreme extirpative
effects of conductivity upon benthic macroinvertebrates, as demonstrated by the evidence at all of the sites involved,
would be sufficient to find a violation of West Virginia’s narrative water quality standards even under the three-part
test since such a violation can occur 1) “when a stream . . . [does not] support[] a balanced aquatic community that is
diverse in species composition” or 2) when “the aquatic community is [] composed only of pollution tolerant species
[and] the aquatic community is [not] composed of benthic invertebrate assemblages sufficient to perform the
biological functions necessary to support fish communities within the assessed reach (or, if the assessed reach has
insufficient flows to support a fish community, in those downstream reaches where fish are present).” See W. Va. H.
Con. Res. 111. Dr. Palmer testified that “levels of [stream] functioning such as rates of primary production or
decomposition [and] whole-stream metabolism . . . change when [] species diversity or species composition changes.
Different species perform different functions in . . . stream ecosystems.” Tr. at 61. Dr. King testified that a WVSCI
score below 68 indicates “a tremendous loss of biodiversity in the stream and [the] commensurate loss of ecological
function . . . related to those organisms,” and all of the experts, including Dr. Menzie, agree that the streams at issue are
impaired. See Id. at 93-94, 224, 227-28, 395. Thus, the sites involved in this case, with their hugely failing WVSCI
scores, simply do not support balanced aquatic communities that are diverse in species composition.

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seriously detrimental to aquatic life. The biological characteristics of these streams have also been
significantly injured, in that species diversity—and, in some areas, overall aquatic life
abundance—is profoundly reduced. These receiving streams are 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. These West Virginia
streams, like the reference streams used to formulate WVSCI and even like those used by
Defendants’ expert for comparison in this trial, were once thriving aquatic ecosystems. 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 each Defendant has committed at least one violation of its permits by discharging
into Laurel Creek or Robinson Fork high levels of ionic pollution, 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. The Court also FINDS that Plaintiffs have established statutory
jurisdiction under both the CWA and the SMCRA.

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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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June 4, 2014