Commission Sues Consol over Fish Kill

Pittsburgh Post-Gazette
8 September 2011
By Don Hopey

The Pennsylvania Fish and Boat Commission has sued Consol Energy for mine discharges that caused a massive fish kill on 30 miles of Dunkard Creek along the Pennsylvania-West Virginia border in 2009.

According to lawsuits filed in Greene County on Wednesday and in Monongalia County, W.Va., last Friday, discharges of polluted water from Consol's Blacksville No. 2 mine caused a bloom of toxic, non-native golden algae that killed more than 42,000 fish, 15,000 freshwater mussels and 6,000 mudpuppies, a large salamander.

The lawsuits seek compensatory and punitive damages for the lost aquatic life and lost fishing and recreational opportunities on what was a popular fishery.

The lawsuits said an estimated 1,455 fishing trips to the creek were "lost" or never occurred due to the fish kill from mid-September to the end of November 2009. And another 15,299 fishing trips will be lost through 2018 due to the lingering depleted fishery, the suits say.

"The devastation to Dunkard Creek was astonishing," said John Arway, executive director of the commission. "It will take decades to restore it to its prior condition."

Shortly after the first fish and mudpuppies started going belly-up in September 2009, water samples taken from the creek at the Blacksville mine treatment facility showed high levels of total dissolved solids, in the 25,000- to 35,000-milligrams-per-liter range, or about the same as in seawater. The federal safe drinking water standard is 500 milligrams per liter.

According to the lawsuit filed in the Circuit Court of Monongalia County, discharges of chloride pollution from Consol's Blacksville No. 2 and Loveridge mines exceeded daily federal discharge limits for seven months before and after the fish kill.

"Defendants knew and willfully disregarded the risk to aquatic life and the waterways, which they knew would be affected by the discharge of substances at levels toxic to aquatic life," the lawsuit says in making a case for punitive damages. "Defendants' actions were willful, wanton and malicious and/or reckless and/or with criminal indifference to the public rights of others."

Consol spokeswoman Lynn Seay said the company had yet to see the lawsuits and declined comment.

The Washington County-based mining and natural gas company paid a $5.5 million civil penalty over the past four years to settle hundreds of federal Clean Water Act violations at the Blacksville No. 2, including those related to the 2009 Dunkard fish kill, and for violations at five other West Virginia mines, according to the Fish and Boat Commission.

The company also paid $500,000 to the West Virginia Department of Natural Resources as compensation for the lost aquatic resources on the West Virginia portion of Dunkard Creek.

"I'm glad," said Betty Wiley, a leader of the Dunkard Creek Watershed Association, about the new fish commission lawsuits. "I was wondering what they were going to do. I think this is good, but we'll see what happens in court."