Ohio Valley Envtl. Coal. v. Foal Coal Co.

摘要

For the reasons stated above, the Defendant's motion to dismiss (Doc. No. 13) is denied. The Plaintiff's motion to strike (Doc. No. 26) is denied as moot. Plaintiffs' have shown by a preponderance of the evidence that both Shanty Branch and Elick Hollow are impaired due to discharges of certain ions as measured by conductivity from Outlets 005 and 011 in violation of its NPDES permits. The chemical and biological components of Shanty Branch and Elick Hollow have been dramatically affected by Fola's discharges into each stream. WVSCI and GLIMPSS scores calculated over a number of months consistently show Elick Hollow and Shanty Branch to be impaired. The water chemistry of both streams reveals extremely high levels of ionic salts-measured as conductivity-known to cause the extirpation of large segments of the naturally occurring mac-roinvertebrate community. The biological characteristics of the streams have also been significantly injured. In both streams nary a mayfly was found over multiple samples taken at different times of the year. The macroinvertebrates that were present were largely, if not exclusively, tolerant to conductivity.