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Ohio Valley Environmental Coalition v. Elk Run Coal Co.

ELR Citation: 44 ELR 20124
Nos. No. 3:12-0785, (S.D. W. Va., 06/04/2014) (Chambers, J.)

A district court held that mining companies discharged excessive amounts of ionic pollution, measured as conductivity, into the waters of West Virginia in violation of their federal NPDES and state surface mining permits. The companies argued that the court could not rule in the groups' favor because doing so would effectively create a conductivity water quality effluent limit, which a federal court already ruled to be beyond the authority of EPA in National Mining Association v. Jackson, 880 F. Supp. 2d 119, 42 ELR 20165 (D.D.C. 2012). But that case involved EPA guidance establishing a region-wide water quality standard, whereas this case involves an EPA scientific study addressing the causal relationship between conductivity levels and biological impairment. In addition, this case does not result from a direct assertion of regulatory authority by EPA. Rather, this is a citizen suit in which the groups allege that the companies violated a term in their permits. Here, the groups successfully established that the companies committed at least one violation of its permits by discharging into two streams high levels of ionic pollution, which has caused or materially contributed to a significant adverse impact to the chemical and biological components of the streams' aquatic ecosystem, in violation of the narrative water quality standards that are incorporated into their discharge permits. The evidence shows that the water chemistry of the streams has been dramatically altered, containing levels of ionic salts scientifically proven to be seriously detrimental to aquatic life. In addition, the biological characteristics of these streams have been significantly injured, with species diversity and overall aquatic life abundance profoundly reduced. The companies, therefore, are in violation of their discharge permits.