Pennsylvania sues Consol, others for Dunkard fish kill

MORGANTOWN – The Commonwealth of Pennsylvania and the Pennsylvania Fish and Boat Commission is suing Consol Energy for the deaths of thousands of fish, mussels and other amphibians along a 30-mile stretch of Dunkard Creek in Pennsylvania and West Virginia.

Consolidation Coal Company and Windsor Coal Company were also named as defendants in the suit.

On Sept. 8, 2009, after assisting the West Virginia Division of Natural Resources biologists with a reported fish, mussel and amphibian kill on the Dunkard Creek portion near Pentress, the Pennsylvania Fish and Boat Commission discovered dead fish, mussels and amphibians in the mainstem of Dunkard Creek, according to a complaint filed Sept. 2 in Monongalia Circuit Court.

Dunkard Creek forms at the confluence of Pennsylvania Fork and West Virginia Fork and the mainstem begins near the town of Brave in Greene County, Pa., and meanders nearly 37 miles between Pennsylvania and West Virginia until its confluence with the Monongahela River near Dunkard Township in Greene County, Pa.

The plaintiffs claim upon discovering the large numbers of fresh dead fish, mussels and amphibians in the mainstem, the biologists notified Commission law enforcement personnel and other agencies and advised them of the discovery.

The dead fish, mussels and amphibians, as well as living fish, mussels and amphibians were then observed by the plaintiffs, who noted that they were showing signs of severe physiologic stress: the fish were lethargic and not exhibiting typical avoidable 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, according to the suit.

The plaintiffs claim 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.

The defendants were required to monitor in-stream chloride levels in the waterways of outlet discharge points and monitoring results from May 1, 2009, until Nov. 30, 2009, showed significant amounts of chloride were discharged, which exceeded the daily maximum chloride effluent limitations, causing the in-stream levels to rise well above the acute water quality criterion for chloride for the protection of aquatic life, according to the suit.

The plaintiffs claim that "chloride and TDS discharges from defendants' mines created and/or contributed to the creation of conditions favorable for the presence of golden algae in excessive quantities, which ultimately led to the fish kill."

The plaintiffs are seeking compensatory and punitive damages. They are being represented by Sharon Z. Hall from the Pittsburgh law firm Zimmer Kunz, PLLC.

Monongalia Circuit Court case number: 11-C-556