A federal judge says he needs more information before he can pinpoint the type of treatment to order a coal company to use to clean up two streams along the Clay-Nicholas County border that were polluted by mountaintop removal mining.
U.S. District Judge Robert C. Chambers appointed a special master to help coordinate efforts to gather additional data to guide his eventual decision on a court order for Fola Coal to clean up conductivity pollution in Road Fork and Cogar Branch of Leatherwood Creek, which flows into the Elk River just downstream from Clay.
Chambers declined to immediately order the options presented by environmental groups, who wanted a reverse osmosis treatment facility, or the company, which preferred a plan to divert contaminated flow away from the streams.
"As proposed, each alternative remedy contains shortfalls that preclude the court from ordering a specific remedy at this time," Chambers wrote.
Chambers ruled in a 32-page order issued late Tuesday afternoon, a follow-up to a previous ruling in which the judge concluded that Fola Coal, a CONSOL Energy subsidiary, was liable for damage to the streams at two of three permits originally named in the case brought by lawyers from Appalachian Mountain Advocates on behalf of the Ohio Valley Environmental Coalition, the West Virginia Highlands Conservancy and the Sierra Club.
The case focuses on mining's effect on electrical conductivity, a key indicator of stream health and the presence of other important pollutants such as chlorides, sulfides and dissolved solids. Research has linked these pollutants increasingly to coal-mining activities, and found that high levels of conductivity are associated with damage to aquatic life. Mining industry officials and their political supporters have been highly critical of efforts by the Obama administration's Environmental Protection Agency to focus more attention on conductivity, unsuccessfully challenging in court the agency's guidance for addressing the issue through tougher mining permit reviews.
In his earlier ruling last August, Chambers detailed a long list of peer-reviewed studies that link pollution discharges from large-scale strip-mining operations to damage to aquatic life in downstream waterways, and noted a "complete absence of peer-reviewed scientific articles to the contrary."
The judge's latest ruling in the Fola case follows a two-day bench trial Chambers held in Huntington in early May.
Chambers made it clear that "the public interest will be furthered" by eventual injunctive relief ordering Fola to clean up the streams.
"There is a paramount public interest in environmental protection, including the protection of aquatic resources," the judge wrote. "Protecting water quality is a critical public interest that profoundly outweighs a company's bottom line."
Chambers appointed James Kyle of the engineering firm O'Brien and Gere to serve as special master, requiring Kyle to within 90 days provide a report on the use of reverse osmosis water purification technology at mine sites. Kyle is also to recommend a specific remedy for the pollution at the Fola sites, but the timeline for that recommendation is unclear.
Reach Ken Ward Jr. at kward@wvgazettemail.com, 304-348-1702 or follow @kenwardjr on Twitter.