CONSOL might face lawsuit over Dunkard Creek water pollution

By The West Virginia Record | Mar 1, 2010

MORGANTOWN -- Environmentalists are planning to sue CONSOL Energy in hopes to stop the ongoing water pollution violations that have been blamed for a massive fish kill in Monongalia County.

The Sierra Club and West Virginia Highlands Conservancy said CONSOL Energy must stop releasing harmful pollution into Dunkard Creek and its tributaries.

The groups sent CONSOL President J. Brett Harvey a 14-page formal notice of intent to sue, citing the company's plans to continue discharge up to six times the legal limit of chlorides into the stream.

The groups said compliance orders issued by the West Virginia Department of Environmental Protection do not free CONSOL of its obligation to comply with existing water quality standards approved by the U.S. Environmental Protection Agency.

"CONSOL has been given one extension after another to comply with the Clean Water Act, and it appears that WVDEP is more concerned with protecting the industry than with protecting the environment," said Jim Kotcon, energy chairman of the West Virginia chapter of the Sierra Club.

Kotcon said the compliance order that was issued by the WVDEP continues a pattern by the WVDEP of being "too cozy with the industries they are supposed to be regulating."

"WVDEP did not consult with the public, nor did they adequately protect the aquatic life in Dunkard creek," Kotcon said.

Cindy Rank, Mining Committee Chair from the West Virginia Highlands Conservancy, said it was only a matter of time before discharges from flooded deep mines in northern West Virginia would contribute to a disaster like the one in Dunkard Creek.

"In allowing CONSOL to violate water quality standards the past five years, WVDEP was short sighted to say the least," Rank said. "Extending that permission after the Dunkard Creek event is unacceptable. It's sad that citizens groups must end up being the backstop for enforcing the law."

Almost all fish, mussels and other aquatic life were wiped out in the 35-mile stretch of Dunkard Creek in September.

Dunkard Creek is a scenic stream that runs along the West Virginia-Pennsylvania border north of Morgantown. Regulators blamed the fish kill on exotic algae, but conceded the algae only flourished because of the high conductivity of the stream.

CONSOL has active and inactive deep mines in the area along Dunkard Creek, and also operates treatment plants used to clean up acid drainage from water pumped out of those underground mines to protect workers.

Since at least 2002, the DEP has listed Dunkard Creek and several tributaries as "biologically impaired," in part because of the chlorides violations.

At least three times in the last decade, the DEP gave CONSOL time extensions to stop violating its permit limits for chlorides, and last year, the DEP issued a clean-up plan for Dunkard Creek that included no remedy for these problems.

CONSOL temporarily stopped discharging from its mine water treatment plants into Dunkard Creek after the fish kill, but the DEP issued an order to allow the company to start discharging again in December.

CONSOL spokesman Joe Cerenzia said the company's discharges were authorized by DEP and that CONSOL is complying with the state's order.

Kathy Cosco, spokeswoman for DEP, said CONSOL is complying with the order and noted the order requires the company to eventually construct a treatment plant "to remove problematic discharges from Dunkard Creek."

The DEP order gives CONSOL until May 2013 to reduce its discharges to comply with the water quality standards.

The notice of intent to sue cites a section of the federal Clean Water Act that prohibits states from issuing pollution discharge limits that would violate EPA-approved state water quality standards. Discharge limits set the amount of pollution a company can discharge into streams, while water quality standards set the legal amount of pollution allowed in the stream itself.

Jim Hecker, Environmental Enforcement Director at Public Justice in Washington, D.C., said the Dunkard Creek fish kill was the same wake-up call for the coal industry that h Exxon Valdez spill was for the oil industry.

"This notice letter is designed to enforce the chloride water quality standard and to deter similar instances of biological impairment and fish kills in other Appalachian streams," Hecker said.

The legal notice gives CONSOL 60 days to respond before the citizen groups can file suit in federal court.

The Sierra Club and the Highlands Conservancy are represented by lawyers from Public Justice and the Appalachian Center for the Economy and the Environment.

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