Federal judge rules against Fola Coal in West Virginia lawsuit

A federal judge in West Virginia on Jan. 27 ruled against the Fola Coal unit of CONSOL Energy (NYSE: CNX) in a 2013 lawsuit filed by environmental groups like the Ohio Valley Environmental Coalition over stream impacts of coal mining.

In August 2014, the U.S. District Court for the Southern District of West Virginia held a trial in this case on liability issues. Judge Robert Chambers found in his Jan. 27 ruling that environmental group plaintiffs have established, by a preponderance of the evidence, that Fola Coal has committed at least one violation of its permits by discharging high levels of ionic pollution, as measured by conductivity, into Stillhouse Branch, which have caused or materially contributed to a significant adverse impact to the chemical and biological components of the applicable stream’s aquatic ecosystem, in violation of the narrative water quality standards that are incorporated into those permits.

The plaintiffs brought this action pursuant to the citizen suit provisions of the federal Clean Water Act and the 1977 federal Surface Mining Control and Reclamation Act. Plaintiffs allege that Fola Coal 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-issued mining permits.

The judge wrote: “In multiple ways, the chemical and the biological components of the aquatic ecosystems found in Stillhouse Branch have been significantly adversely affected by Defendant’s discharges. The water chemistry of this stream has been dramatically altered, containing levels of ionic salts—measured as conductivity—which are scientifically proven to be seriously detrimental to aquatic life. The biological characteristics of the stream have also been significantly injured, in that species diversity—and, in some areas, overall aquatic life abundance—is profoundly reduced.”

The U.S. Mine Safety and Health Administration classifies all registered Fola Coal operations as either new mines (two underground operations) with no production yet, or being shut, with no operations listed as active.

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.