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.