CONSOL Sued By Pa. Group

Company blamed for fish, animal deaths

Morgantown Dominion Post
8 September 2011
From Staff & Wire Reports

The Pennsylvania Fish and Boat Commission sued CONSOL Energy Inc. on Wednesday for the deaths of thousands of fish and other animals along a 30-mile stretch of Dunkard Creek in Pennsylvania and West Virginia.

The Greene County, Pa., lawsuit followed a similar complaint that the commission filed last week in Monongalia County over the 2009 fish kill.

The commission blamed discharges from CONSOL mines for the deaths of about 43,000 fish, 15,000 mussels and 6,500 mudpuppies. It said it will take decades for the stream to return to health.

Lynn Seay, CONSOL’s media relations director, said company officials had not seen the lawsuits and would not comment until they did.

The lawsuit also names as defendants Consolidation Coal Co. and Windsor Coal Co., both located at CONSOL’S headquarters in Canonsburg.

The Monongalia County suit states and alleges:

The defendants are required to monitor in-stream chloride (salt) levels under their West Virginia National Pollutant Discharge Elimination System (NPDES) permit.

From May 1-Nov. 30, 2009, at least, defendants discharged amounts of chloride (salt) from their Loveridge Outlet 016 “St. Leo” that exceeded the daily maximum amounts allowed in the NPDES permit, and above levels required to protect aquatic life.

From Aug.1-Sept. 19, 2009, at least, excessive levels were discharged from the defendants’ Blacksville 2 Outlet 015 “Velone Pond,” also endangering aquatic life.

Sampling by the U.S. Environmental Protection Agency and Pennsylvania Department of Environmental Protection (DEP) showed high levels of total dissolved solids (TDS) in Dunkard, including 19.05 kilometers inside Pennsylvania. High TDS levels support the growth of golden algae, which is toxic to aquatic life and led to the massive kill.

About 1,455 angler trips were lost from Sept. 16-Nov. 30, 2009, and an expected total 15,299 trips will be lost through 2018.

In the immediate aftermath of the kill, both suits say, other fish were lethargic, with many congregating at the mouths of small tributaries and some seen gulping for air at the surface, the lawsuit said.

“Inspection of the stressed and dying fish revealed that their gills were inflamed, blood vessels were dilated or ruptured and tissues were abnormally reddish” near their gills, commission lawyers wrote in the West Virginia complaint.

The September 2009 fish kill on the tributary of the Monongahela River left the stream tea-colored and devoid of nearly all life, with only water bugs and some minnows from feeder streams still alive.

Plaintiffs are seeking damages for nuisance, trespass and negligence; for liability for the high TDS levels, the loss of aquatic life, angler trips and general use of the creek, and cleanup costs; and punitive damages.

In March, the West Virginia DEP and the Division of Natural Resources reached a settlement with the same three defendants in the U.S. District Court for the Northern District of Pennsylvania.

The company agreed to pay $500,000 for natural resource damages, a $5.5 million civil penalty and $200 million to build an advanced water treatment plant to address high chloride levels from its four underground mines in the state.

The DEP said in March, “In the days immediately following the fish kill in Dunkard Creek, CONSOL voluntarily worked with the DEP and the EPA to proactively manage their mining operations to minimize the risk of another algae outbreak while at the same time keeping their miners working.”

The DNR noted that fish are returning to Dunkard, and the DEP added that it will monitor the creek for golden algae for the next four or five years to make sure it was an isolated event.

Asked on Wednesday about the Pennsylvania suits, West Virginia DEP spokesman Tom Aluise said DEP is aware of them and will watch them with interest. Its business with the defendants is concluded.

“Through joint action with the U.S. Environmental Protection Agency against CONSOL,” he said, “we have resolved the state’s natural resource damages and both state and federal water pollution damages.”