RICHMOND, Va. – The Fourth Circuit Court of Appeals heard arguments Thursday from Fayette County, West Virginia, which is seeking to hold coal mining companies accountable for alleged environmental damage caused by waste dumps in the Johnson Fork of the Loop Creek watershed.
The county has sued more than a dozen coal mining, real estate, and insurance companies, claiming they failed to address the environmental threat posed by five coal waste piles, known as garbage of bituminous (GOB) piles.
“These piles emit acid mine drainage, lower pH levels, ruin streams, and kill fish,” said Michael Callaghan, an attorney representing the county. “These are problems left behind by coal companies.”
The county alleges violations of the Resource Conservation and Recovery Act, the Comprehensive Environmental Response, Compensation and Liability Act, the West Virginia Solid Waste Management Act, and the Federal Clean Water Act, arguing that the companies have created a public nuisance.
Lower Court Dismissed the Case, Citing Lack of Evidence of Harm
A lower court dismissed the lawsuit, ruling that the county had not demonstrated how low levels of contaminants—including arsenic, beryllium, cadmium, iron, manganese, and sulfate—posed a threat to the watershed or its wildlife.
“The court cannot find that the waste in the GOB piles ‘may present an imminent and substantial endangerment’ without evidence supporting such a claim,” wrote U.S. District Court Judge Thomas Johnston. While proof of actual harm was not required, he said there needed to be a “reasonable prospect of future harm.”
The county contends that Eastern Gas and Fuel Associates, later known as National Grid Holdings, conducted mining operations in the region from the 1920s to the 1950s, creating unlined waste piles. Over time, the land has changed hands among several coal and real estate companies.
County Argues Broader Interpretation of Public Nuisance Law
In addition to federal and state law claims, Fayette County seeks enforcement through its 2018 Comprehensive Public Nuisance Abatement Ordinance, which allows county commissions to regulate and clean toxic waste on private property.
However, Johnston ruled that the commission could only declare something a public nuisance if it met the common law definition of a public nuisance.
“Like dominoes, as one count falls in this case, so do the others,” Johnston said.
Attorney Michael Donovan, co-representing the county, argued before the Fourth Circuit panel that the nuisance ordinance grants the county the authority to act when contaminants impair beneficial water uses, even if they do not exceed numerical thresholds.
“These contaminants stress fish and deprive aquatic life of beneficial water quality,” Donovan said.
Debate Over Water Quality Standards
The lower court relied on water testing data from the county and one of the defendants’ experts, both of which showed that contaminant levels complied with Safe Drinking Water Act regulations. While the county did not need proof of harm, it did need to demonstrate a risk of harm—something Johnston ruled was not proven.
U.S. Circuit Judge Allison Rushing asked Donovan how the county’s claims could hold up against water test results showing no violations.
Donovan argued that the court should focus on narrative water quality standards rather than strict numerical limits.
“The district court focused entirely on harm, relying only on numerical standards,” Donovan said. “But you don’t need dead fish or a violation of a numerical standard to prove impairment.”
Historical Perspective and Legal Precedent
U.S. Circuit Judge Robert King reflected on his experience as a former prosecutor who, in 1973, helped convict Valley Camp Coal Company for illegally dumping coal waste into a tributary of the Kanawha River.
“It sounds like you did an excellent job, your honor,” responded Shane Harvey, an attorney representing National Grid Holdings, drawing laughter from the courtroom. “But this situation is very different from the one you faced as a prosecutor.”
Harvey emphasized that water quality testing found no excessive contamination and no demonstrable harm.
“The water in these streams is good,” Harvey said. “There is no harm or risk of harm.”
The attorneys for both sides declined to comment after the hearing. The panel also included U.S. Circuit Judge DeAndrea Gist Benjamin.
