Coal Tattoo

4th Circuit rejects Alpha conductivity appeal

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There’s an interesting order out from the 4th U.S. Circuit Court of Appeals concerning a significant mountaintop removal case.  In it, a three-judge panel refuses a request from Alpha Natural Resources that the court consider an immediate appeal of U.S. District Judge Robert C. Chambers’ ruling in part of a case over conductivity pollution from Alpha operations.

Some readers may recall the initial June ruling, which we reported this way:

Citing what he said was “extensive scientific evidence,” a federal judge has ruled for the first time that conductivity pollution from mountaintop removal mining operations is damaging streams in Southern West Virginia.

U.S. District Judge Robert C. Chambers concluded that mines operated by Alpha Natural Resources in Boone and Nicholas counties have “caused or materially contributed to a significant adverse impact” to nearby streams, giving citizen groups a major victory that also supports Obama administration efforts to reduce mountaintop removal impacts.

In a 67-page ruling issued Wednesday, Chambers found that mining discharges had not only altered the chemistry of the streams, but also “unquestionably biologically impaired” them, leaving both the diversity and abundance of aquatic life “profoundly reduced.”

“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,” the judge wrote.

“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,” Chambers wrote. “Protecting these uses is the overriding purpose of West Virginia’s water quality standards and the goal of the state’s permit requirements.”

As we noted in that story:

Chambers ruled after a two-day trial in December. He found that the coal operations had caused water quality violations, but has not yet decided what sort of penalty or other injunctive relief he will order.

Alpha lawyers tried to appeal just what Judge Chambers had ruled on so far, but the 4th Circuit refused to hear that appeal. A trial is scheduled to start on Dec. 2 on what sort of penalty or injunctive relief is appropriate.