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.