Coal Tattoo

CONSOL to pay $5.5 million in Dunkard Creek deal

Federal and state regulators will announce in a few hours that they’ve reached an agreement for CONSOL Energy to pay $5.5 million in civil penalties for pollution violations related to the huge fish kill in the fall of 2009 in Dunkard Creek along the West Virginia-Pennsylvania border.

A press conference is scheduled for 1:30 p.m. at Mason-Dixon Historical Park outside Morgantown.

But federal government lawyers just a few moments ago filed in U.S. District Court in Clarksburg this complaint against CONSOL and this consent decree to resolve that lawsuit.

The settlement also describes requirements for CONSOL to complete a new, $200 million water treatment system to better control pollution discharges from its active and former mining operations in the area.

UPDATED:  CONSOL just issued this news release (nearly 90 minutes before the press conference), describing the settlement as a “Ground Breaking Clean Water Act Agreement … promoting environmental stewardship that will set the highest standard for mine water treatment.”

According to the release:

Working with the regulatory authorities, CONSOL Energy was able to outline an efficient, flexible path forward to implement additional clean technologies and best practices at its operations. The agreement will allow CONSOL Energy to treat mine water discharges from four mines on the order of 3,500 gallons per minute, removing 95-98 percent of the pollutants through the use of a state of the art centralized Reverse Osmosis/Zero Liquid Discharge (RO/ZLD) facility. CONSOL Energy is making an investment of $200 million as part of this commitment. This facility, together with a similar $100 million water treatment facility that CONSOL Energy is currently in the process of commissioning at its Buchanan Mine in Virginia, puts the company at the forefront of environmental stewardship.

CONSOL also explained:

CONSOL is also resolving alleged natural resource damages claims in a cash settlement of $500,000 with the West Virginia Department of Natural Resources. This agreement will not only avoid pointless litigation, but will also provide resources to the state to enable them to further address stream degradation issues such as poor stream habitat and poorly managed sewage discharges along the creek.

The company release quotes CONSOL Energy President Nick DeIuliis:

We currently employ more than 3,500 people and produce more than 30 million tons of coal per year from our reserves in West Virginia. As one of the largest operators and employers in the state, we take seriously our role as stewards of the land and are proud of our track record on environmental excellence. This agreement represents a concrete, proactive demonstration of that commitment.

In its release, CONSOL also asserted:

Today’s agreement follows a fall 2009 algae bloom that was fatal to a large quantity of fish and other aquatic life in Dunkard Creek, a tributary of the Monongahela River. CONSOL Energy immediately took voluntary action to temporarily stop permitted discharges of water from its mines to the creek. Working with renowned biologists, CONSOL Energy determined its operations were not the cause of the algae bloom, but because of its commitment to community and environment, initiated a plan to manage stream water quality.

But the federal government’s lawsuit alleges nearly 500 violations by CONSOL of permit limits for chlorides at its operations in the area, contributing to serious water quality standard violations in the watershed.  The lawsuit explains that these violations can cause toxic effect in the resident aquatic life, and goes on to state:

Increased salinity due to total dissolved solids affects gills and other respiratory structures of fish, mussels, amphibian, and aquatic macro-invertebrates, and can also impact certain life states, such as the ova. As with chloride, increased TDS can lead to increased mortality in the resident aquatic life and to impairment of the stream.

WVDEP biological assessment data from September of 2009 demonstrates that the aquatic macro-invertebrate communities downstream of the [CCONSOL] Velone Pond and St. Leo discharges were severely impaired and damaged.

In addition, on or about September 2, 2009, and extending for several weeks thereafter, a massive and devastating fish, mussel and salamander kill (the ‘fish kill’) was reported in the Dunkard Creek watershed which transects both northern West Virginia and southern Pennsylvania. Investigations by EPA and WVDEP have determined that the fish kill was caused by toxins released from a species of golden algae (Prymnesium parvum) associated with and commonly thriving in brackish, briny water or water with high TDS. Chloride is a major component of the TDS in Dunkard Creek.

And more to the point:

Chloride and TDS discharges from CONSOL’s mines created and/or contributed to the creation of conditions favorable for the golden algae to thrive and bloom, which ultimately led to the fish kill.

Interestingly, the CONSOL news release has some quotes from WVDEP Secretary Randy Huffman:

Today’s agreement is an example of how we can protect the environment in accordance with the law while maintaining the economic engine that our state depends upon. In the days immediately following the fish kill in Dunkard Creek, CONSOL voluntarily worked with the DEP and the EPA to proactively manage their mining operations to minimize the risk of another algae outbreak while at the same time keeping their miners working.

Mining is critical to our state’s economy, but clean water is paramount. This agreement supports both. We appreciate having CONSOL as our environmental and economic partner in protecting our state’s watersheds.

Oddly enough, there’s no mention in the release of how the WVDEP repeatedly gave CONSOL more time to continue violating its permit limits — for years prior to this fish kill. As we wrote in a lengthy piece back in September 2009 (See also this link, for details of citizen efforts to pressure some action on these problems):

Since at least 2002, the DEP has listed Dunkard Creek and several tributaries as “biologically impaired.” At least two major coal discharges have consistently violated water quality limits — sometimes discharging five or six times the legal standards — for years.

Environmental groups say that DEP officials have been far from aggressive in trying to remedy the problems.

At least three times in the last decade, the DEP gave CONSOL Energy time extensions to stop violating its permit limits for chloride, a pollutant believed connected to the fish kill.

And earlier this year, the DEP issued a proposed cleanup plan that included no remedy for a growing problem and potential fish kill culprit: The stream’s high level of conductivity, which is also linked to CONSOL’s discharges.

UPDATED 2:

Just got a press release from EPA and the U.S. Department of Justice (it doesn’t appear to be online yet), including this quote from Ignacia S. Moreno, Assistant Attorney General for the Environment and Natural Resources Division of the Department of Justice:

In this settlement, Consol takes responsibility for its past failures to abide by the terms of its Clean Water Act permits.

Actually, the proposed consent decree, on page 2, states:

Defendants do not admit any liability to the United States or the State arising out of the transactions or occurrences alleged in the respective Complaints, nor do the Defendants admit the factual allegations alleged in the respective Complaints.

And in its press release, CONSOL said:

Under the agreement announced today, CONSOL Energy also agreed to pay the EPA $5.5 million, without admitting any liability.

UPDATED 3: The West Virginia DEP has also issued this press release, noting, among other things —

… The state DNR reports that fish are returning to Dunkard Creek following the massive kill. A fish survey conducted at one station on Dunkard Creek a month following the September 2009 fish kill revealed only four species of fish. By July 2010, sampling revealed 29 species at that same station. In 2005, the same location had 33 species.