Consol Sued for Dunkard Creek Fish Kill
Wheeling Intelligencer
29 October 2011
By Casey Junkins, Staff Writer
WHEELING - Consol Energy has agreed to pay more than $205 million
in federal fines and pollution control costs associated with an
algae bloom that killed thousands of fish and other aquatic life
in Dunkard Creek.
The penalties assessed by the U.S. Environmental Protection Agency
may be only the beginning for Consol as now the Pennsylvania Fish
and Boat Commission is suing the company for contributing to the
death of nearly 65,000 fish, mussels and salamanders in Dunkard
Creek in September 2009.
Officials previously estimated that only 22,000 creatures died
during the golden algae bloom, which government officials believe
occurred from coal mining waste in the creek.
The lawsuit is set for a hearing in U.S. District Court for the
Northern District of West Virginia. Dunkard Creek drifts back and
forth across the West Virginia-Pennsylvania line before flowing
into the Monongahela River.
One item Consol may have in its favor is the opinion of
Wheeling-based EPA biologist Lou Reynolds who wrote a series of
emails, starting in November 2009, that indicated he believed the
fish kill may have been partially due to natural gas activity.
"We cannot clearly rule the Marcellus Shale waste in or out in
terms of being a contributing factor," said EPA spokeswoman Terri
White, speaking on Reynolds' behalf.
Pennsylvania Fish and Boat Commission attorney Sharon Hall writes
in her complaint that Consol committed "illegal, toxic discharges"
into Dunkard Creek. She adds that Consol's actions were "willful,
wanton and malicious ..."
Consol attorney Carol Marunich counters that claim stating "the
presence of (golden algae) in the Dunkard Creek watershed were the
result of natural forces beyond the control" of the company.
Both the EPA and Pennsylvania officials believe the algae bloom
occurred because of an increase in the total dissolved solids in
the creek.
"Chloride and TDS discharges from defendants' mines created ...
conditions favorable to the presence of golden algae in excessive
quantities, which ultimately led to the fish kill," wrote Hall.
"The discharges ... caused significant adverse impacts to the
sections of Dunkard Creek situated" in Pennsylvania.
Marunich refutes the claims, as she refers to the algae bloom as
an "unprecedented, abnormal and extraordinary event."
Hall claims Consol's actions led to the death of 42,997 fish,
15,382 freshwater mussels and 6,447 mudpuppies, which are a type
of salamander. Consol also denies this accusation.
The Pennsylvania commission seeks to be compensated for the demise
of the nearly 65,000 aquatic life, as well as the cleanup costs
and the cost of restoring the wildlife to the creek.
Hall could not be reached for additional comment. Marunich
referred all questions to Consol spokeswoman Lynn Seay, who
provided the original court documents in lieu of comment. The case
is pending in the Clarksburg division of West Virginia's Northern
District Court.
Drilling Waste as Possible Cause
According to the New York Times, Reynolds, who referred all
questions to White, wrote several emails, some of which indicated
he believes Marcellus Shale drilling and fracking may have
contributed to the problems at Dunkard Creek.
"There is water that is removed from these streams for use in
Marcellus fracking," he wrote. "There is always some amount of
water that gets left in the tank and hoses that then get put into
other streams. By far, this is the most likely way that (golden
algae) will be moved around."
In describing the scene at the creek following the fish kill,
Reynolds wrote, according to the Times, "What a mess! Up to our
knees in rotting fish, mussels and mudpupp(ies) is no fun - it's
criminal. Dead mudpupp(ies) look like sock puppets floating in the
stream. Mussels die, the meat rots off the shell, then bloats and
floats down the stream like a hellish jelly fish. The stench of
rotting fish takes a day or more to work out of your scent
memory."
Later, Reynolds wrote,"Mining companies are disposing of (coalbed
methane) and Marcellus water in the mine pool," and "Mining
companies are taking (coalbed methane) and Marcellus water into
their treatment ponds. One or any combinations of the above might
be happening."
Despite agreeing to pay the $205 million in fines and upgrades
required by the federal government, Consol officials never
actually admitted liability for the fish kill.
"Our position has always been that our discharges did not cause
the golden algae to release toxins into Dunkard Creek," Seay said.
"We did not admit liability or any of the factual or legal
allegations ..."
Seay declined to comment on the matter further to the Sunday
News-Register.