Commonwealth of Pennsylvania Sues Consol Energy
The suit was originally filed in Monongalia Circuit Court but
transferred to U.S. District Court for the Northern District of
West Virginia Oct. 11.
The State Journal
13 October 2011
By Andrea Lannom
The Commonwealth of Pennsylvania filed a federal lawsuit claiming
Consol Energy subsidiaries released excessive amounts of chloride
and total dissolved solids into Dunkard Creek, killing aquatic
life in the process.
The lawsuit against Consolidation Coal Co. originally was filed in
Monongalia County Circuit Court by the commonwealth and the
Pennsylvania Fish and Boat Commission. The case was transferred to
U.S. District Court for the Northern District of West Virginia
Oct. 11.
According to the suit, high levels of total dissolved solids
support the proliferation of golden algae. When this type of algae
is stressed, it can release toxins fatal to fish and other aquatic
life. Plaintiffs claimed these toxins led to a “massive” fish,
mussel and amphibian kill along Dunkard Creek, which runs through
part of Pennsylvania and West Virginia.
Commission biologists assisted the West Virginia Division of
Natural Resources in September 2009 and reported approximately
42,997 fish, comprised of 40 species, and 15,382 freshwater
mussels, comprised of 14 species, were estimated to have been
killed.
The lawsuit stated Dunkard Creek historically supported 51 fish,
17 mussel and six amphibian species.“In terms of mussel diversity,
Dunkard Creek was the fourth-most diverse stream in Pennsylvania,”
the lawsuit stated.
Commission biologists claimed they found several “physiologically
stressed” fish, mussels and amphibians.
“Fish were lethargic and not exhibiting typical avoidance
behavior; large numbers of large fish were congregating at the
mouths of small tributaries and many were observed ‘rolling in the
water’ and gulping air at the surface,” the suit stated.
“Inspection of the stressed and dying fish revealed that their
gills were inflamed, blood vessels were dilated or ruptured and
tissues were abnormally reddish in color around the gill areas.”
Plaintiffs also claimed discharges caused “significant adverse
impacts” to Dunkard Creek’s aquatic life and the fishing industry.
“Due to the significant loss of reproductive adults from the
population, the fish, freshwater mussels and mudpuppies killed in
Dunkard Creek in 2009 are expected to have a slow but gradual
recovery that is projected to take decades to reach pre-event
baseline levels.”
However, defendants assert in an answer to the complaint filed
Oct. 13 that the federal Clean Water Act prohibits plaintiffs from
bringing these claims because the facilities did not discharge
directly into Pennsylvania’s own waters.
“Plaintiff’s injuries and damages, if any, were proximately caused
by an Act of God or natural condition or event,” the document
stated.
Addressing the suit’s claim of golden algae toxins, defendants
admit that samples indicated presence of the algae.
“The complaint should be dismissed because the presence of
prymnesium parvum (golden algae) and or the blooming of golden
algae in Dunkard Creek was such an unusual, unprecedented,
abnormal and extraordinary event that it could not have been
anticipated or foreseen by the defendants,” court documents
stated.