Consol wants Dunkard fish case in federal court

CLARKSBURG -- Consol Energy Inc., sued last month by the state of Pennsylvania for killing thousands of fish and other wildlife along a creek bordering it and West Virginia, now wants the case moved to federal court.

In a notice of removal filed in the U.S. District Court for the Northern District of West Virginia on Tuesday, Consol argues that the regulation of interstate water pollution is a matter of federal, not state, law.

Last month, Pennsylvania and its Fish and Boat Commission sued Consol, Consolidated Coal Co. and Windsor Coal Co. in Monongalia Circuit Court.

The plaintiffs allege the companies are responsible for the deaths of thousands of fish, mussels and other amphibians along a 30-mile stretch of Dunkard Creek.

Dunkard Creek forms at the confluence of Pennsylvania Fork and West Virginia Fork. 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.

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 the dead fish and wildlife in the mainstem, according to a complaint filed Sept. 2 in Monongalia Circuit Court.

The plaintiffs claim after discovering the large numbers of fresh dead fish, mussels and amphibians in the mainstem, the biologists notified commission law enforcement personnel and other agencies of their discovery.

The dead fish, mussels and amphibians, as well as living fish, mussels and amphibians, were then observed by the plaintiffs, who noted 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 complaint.

The plaintiffs claim inspection of the stressed and dying fish revealed their gills were inflamed, blood vessels were dilated or ruptured, and tissues were abnormally reddish in color around the gill areas.

The companies were required to monitor in-stream chloride levels in the waterways of outlet discharge points. Monitoring results from May 1, 2009 through Nov. 30, 2009 showed significant amounts of chloride were discharged, exceeding the daily maximum chloride effluent limitations and 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 lawsuit.

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 and Macel E. Rhodes of the Pittsburgh law firm Zimmer Kunz PLLC.

Consol, Consolidation Coal and Windsor are being represented by Christopher B. Power and Robert M. Stonestreet of Charleston firm Dinsmore and Shohl LLP, and Carol A. Marunich of Morgantown.