The Massive Dunkard Creek Fish Kill
Over 30 miles of prime fishery wiped-out in 2009!
First, let’s take a look back at what it had been…
Outdoors: Dunkard Creek unknown gem
By Ben Moyer | Pittsburgh Post-Gazette | July 2, 2006
Paddlers should take along a fishing rod. Dunkard Creek is a haven for smallmouth bass and muskellunge. “Nothing tastes better than a bass from Dunkard Creek,” Wiley said. Part of the Pennsylvania portion was once a designated catch-and-release smallmouth stream. The regulation has since been dropped because there was no evidence the rule was improving the fishery. “The biggest musky I’ve heard of coming from Dunkard was a 48-incher,” Wiley said. For more information about Dunkard Creek, the Dunkard Creek Watershed Association, or the Friends of Dunkard Creek, go to www.dunkardcreek.org.
The day Dunkard Creek died…
Sometime around September 1, 2009, there was a massive fish kill along most of Dunkard Creek. The creek criss-crosses the Pennsylvania-West Virginia border 18-times before reaching the Monongahela River, which flows north to Pittsburgh, where it joins the Allegheny River to form the Ohio River.
Dunkard Creek is a 38-mile creek that contained a unique ecosystem with 161 species of fish, 14 species of mussels, salamanders, crayfish and aquatic insects. It was one of only two or three creeks like it on the Monongahela River watershed.
Some experts said it would be decades before the fishery returned to normal, if ever.
Some experts said it would be decades before the fishery returned to normal, if ever. Many of the fish were over 15 years old. It’s believed the prized mussel population may have been lost forever.
While the exact source(s) of the pollutants was debated, it was obvious that water high in TDS (total dissolved solids) was to blame. High TDS levels, combined with other ‘favorable’ environmental conditions, created the perfect environment for a toxic golden algae bloom that helped kill an estimated 20,000 fish and other aquatic life.
Even if the algae bloom is what ultimately killed the fish, it seems that the cause of the bloom is high chloride levels. The high chloride levels are a clear indicator of frac water, not mine pollution (which is high in sulfates). The agencies just refuse to say the words “Marcellus drilling” in any press article.
Water expert
High TDS conditions were also enhanced by low water levels in creeks and streams, caused by dry weather and widespread water withdrawals from streams and creeks for fracking operations, and restoration of a stream decimated by long wall mining.
Tanker trucks could back-up to any stream 24-7 and pump out 4,200 gallons or more at any time. Many watersheds in West Virginia and Pennsylvania were severely challenged by this ongoing ‘wild west’ raid for free water, since each Marcellus well that was fracked back then, could require up to 6-million gallons of new water for fracking.
Did Golden Alga come into Pennsylvania on oil and gas equipment from Texas?
In Texas, golden alga-related fish kills have occurred in inland waters with high salt or mineral content, usually west of I-35. The first confirmed case was in 1985 on the Pecos River in the Rio Grande Basin. Since then, golden alga has been responsible for multiple fish kills in at least five river basins. Source: Golden Alga – What is it?
TEXAS PARKS & WILDLIFE
MOONLIGHT DUMPING
Some of these same “Residual Waste” tankers were ‘moonlight dumping’ wastewater into remote tributaries and opening their drain valves as they drove back roads under the cover of rain or darkness.
September 20, 2009
Sudden death of ecosystem ravages long creek
By Don Hopey | Pittsburgh Post-Gazette | September 20, 2009
Just 20 days ago, Dunkard Creek, which meanders lazily back and forth across the border of Pennsylvania and West Virginia, was one of the most ecologically diverse streams in both states, containing freshwater mussels, mudpuppy salamanders and a host of fish species from minnows to 3-foot-long muskies.
But today, the 38-mile creek is all but dead, its 161 species of fish, mussels, salamanders, crayfish and aquatic insects killed by mysterious pollutants coming from sources state and federal agencies have yet to pinpoint despite aggressive field work.
“We’ve just been decimated down here. Everything is being killed almost from the headwaters of the creek to where it flows into the Monongahela River. An ecosystem has been destroyed.”
Betty Wiley, president of the Dunkard Creek Watershed Association
And fish continue to die as the initial mass of pollution moves down the creek, which flows into the Monongahela just down river from Point Marion, Fayette County, and as additional pollution is discharged from its mysterious source.
Environmental agencies are treating the creek as a crime scene. Longtime environmental and fisheries officials say the fish kill, which preliminary counts have put at more than 10,000, is one of the worst they’ve seen.
It killed salamander mussel and the snuffbox mussel — both candidates for federal listings as endangered species
An early and continuing focus of the investigation has been discharges from a mine water treatment facility located at Consol Energy’s Blacksville No. 2 mine in West Virginia.
But state and federal investigators are confounded because chemical analysis shows the creek water at the treatment facility site contains extremely high total dissolved solids, or TDS, and chlorides — properties found in wastewater from Marcellus Shale gas well drilling operations but not mine water. Total dissolved solids may include metals, salts and other elements.
Disposal of wastewater from the wells has caused problems throughout Pennsylvania, including TDS readings that exceeded federal safe drinking water standards in the Monongahela River last winter and this year.
The state agencies now are looking at the possibility that someone has illegally dumped drilling wastewater into the creek to avoid the expense of complying with laws governing its disposal. The water must be treated in Pennsylvania or injected deep underground in West Virginia.
Unlike Pennsylvania, the West Virginia DEP doesn’t permit water or sewage treatment facilities in the state to accept or discharge Marcellus well wastewater.
Water samples taken from the creek at the Blacksville mine treatment facility show extremely high levels of total dissolved solids, in the 25,000- to 35,000-milligrams-per-liter range, or about the same as in seawater.
“It’s disgusting to see that much life wiped out… it’s just dead wrong”
Ed Presley
“It’s disgusting to see that much life wiped out,” said Ed Presley, who owns property along the creek at the Lower Brave Dam. “To see the quality and beauty of that stream and then to see what happened to it, well, it really tears at you. I’m not really a tree-hugger but to see natural things destroyed and wasted like this, it’s just dead wrong.” Full story
September 25, 2009
Golden algae to blame for Dunkard Creek fish kill
By Don Hopey | Pittsburgh Post-Gazette | September 25, 2009
A bloom of toxic alien algae is being blamed for killing thousands of fish, mussels and other forms of aquatic life in more than 30 miles of Dunkard Creek along the Pennsylvania-West Virginia border this month.
Randy Huffman, West Virginia Department of Environmental Protection secretary, told West Virginia Public Broadcasting yesterday that low, warm creek flows and high levels of chlorides and dissolved solids combined to produce an environment conducive to the growth of golden algae, a species of algae usually found in southern and southwestern states.
Mr. Huffman said the dissolved solid and chloride levels were high because of discharges from a mine treatment facility at Consol Energy’s Blacksville No. 2 deep mine and a second treatment facility at Consol’s Loveridge deep mine near the West Virginia town of St. Leo.
Another contributing cause, Mr. Huffman said, could be what he described as a discharge from a new borehole into which an unspecified company is injecting drilling wastewater into a mine void.
But the only deep injection wastewater well in the area permitted by the U.S. Environmental Protection Agency is the Morris Run injection well operated by CNX Gas Co. LLP, a subsidiary of Consol Energy, at Consol’s closed Blacksville No. 1 mine in Greene County since 2005. Consol uses the well to dispose of wastewater from its methane well drilling operations.
Because of violations at that injection facility from September 2007 to March 2009, CNX was fined $157,500 for violating provisions of the federal Safe Drinking Water Act, including accepting at least 100 truckloads of wastewater with total dissolved solids levels “significantly higher” than its federal permit allowed. Full story
October 4, 2009
Toxins tied to fish kill may have hitchhiked
By Don Hopey | Pittsburgh Post-Gazette | October 4, 2009
An invasive toxic algae, blamed for contributing to the massive Dunkard Creek fish kill along the Pennsylvania-West Virginia border, may have hitchhiked to the region aboard equipment used in Marcellus shale drilling.
That kind of transregional travel could put fish and aquatic life in the states’ other creeks and watersheds at risk in coming years as thousands of new wells are drilled into the thick and gaseous layer of shale that lies a mile deep under much of Pennsylvania and the northern Appalachians.
But the West Virginia agency doesn’t know how the algae got into the creek. Investigators also are looking at the possibility that someone illegally dumped drilling wastewater into the creek.
The investigation continues to focus on extremely high levels of dissolved solids and chloride found in discharges from two Consol Energy mine-water treatment facilities on the creek, and low flow conditions — possibly acerbated by tanker trucks that local residents have said they often saw withdrawing water from the creek. That combination created an aquatic environment conducive to growth of the algae.
“We do believe there is golden algae in the creek, but for it to thrive there must be a lot of stuff in the creek that shouldn’t be there”
David Sternberg, a U.S. Environmental Protection Agency spokesman
Golden algae is one of a group of algae known as chrysophytes that are usually found in hotter, sometimes coastal, environments of the Southwest and South. It is the only chrysophyte algae that produces toxins lethal to fish, mussels, salamanders and other aquatic life.
“Our biggest concern is how the conditions were created in Dunkard Creek that allowed that algae to thrive,” Mr. Sternberg said.
“If we see a saltwater algae in a freshwater creek, we know there must be something very wrong”
David Sternberg, US EPA spokesman
The EPA also is “very concerned” that golden algae could spread throughout the northern Appalachian region where it might devastate other fisheries, Mr. Sternberg said.
Dr. John Rodgers, a professor at Clemson University who has researched invasive freshwater algae, made the initial identification of the algae in Dunkard Creek for Consol.
“[Drilling equipment] is certainly something you will want to look at. This is not an organism you want to trifle with,” he said, adding that it has been blamed for wiping out bass populations in Texas. “Certainly you want to think through the pathways it took to that stream and start working on it as fast as you can.”
Last week, a long-awaited 18-month state environmental review of Marcellus shale drilling issues in New York said that floating and submerged aquatic plants could be transported by a variety of equipment used in the deep shale drilling and hydraulic fracturing processes to crack the shale layer and release the gas it contains.
Texas origins?
The algae, prymnesium parvum, has been known to kill fish in Texas, Arizona and New Mexico since it first showed up in 1985 in the Pecos River in Texas. It also has been found in the Brazos River in Texas where gas well drilling companies are advised not to draw from the river during the algae’s winter blooming season.
But the algae had not been found around the Mason-Dixon Line before. Matt Pitzarella, a spokesman for Texas-based Range Resources, one of the biggest drilling companies operating in the Marcellus shale, said Range hasn’t moved any drilling rigs from Texas to Pennsylvania.
NOTE: Ron Gulla reports that some of the drilling equipment used by Range Resources on his farm in Hickory, PA in 2007 was from west Texas. He spoke with the truck driver hauling the equipment.
The use of fracing fluids and the drawing and disposal of well drilling wastewater have become environmental concerns. High levels of total dissolved solids in the Monongahela River last winter and this fall, which damaged equipment for some industrial water users and caused bad-tasting and -smelling water for residential water customers, was caused in part by discharges of drilling wastewater.
“The players coming to drill here are new to Pennsylvania and may be bringing problems we could not foresee,” said Jan Jarrett, president and chief executive officer of Citizens for Pennsylvania’s Future, an environmental group that has campaigned for a state severance tax on gas well drilling. Full story
October 13, 2009
Pa. points to mine discharge for Dunkard Creek fish kill
By Don Hopey | Pittsburgh Post-Gazette | October 13, 2009
A heretofore undisclosed underground flow of mine pool water between Consol Energy’s Blacksville No. 1 and No. 2 mines may have contributed to the highly salty, polluted discharges that caused the massive, month-long fish kill on Dunkard Creek.
The Pennsylvania Department of Environmental Protection said stream sampling shows discharges high in dissolved solids and chlorides from Consol Energy’s Blacksville No. 2 Mine are the “primary immediate source” of the fish kill that last month wiped out aquatic life on 35 miles of the 38-mile stream that meanders along the Pennsylvania-West Virginia border.
But the DEP, in a letter dated Wednesday, has also asked Consol to provide information of the underground connections between its active Blacksville No. 2 Mine in West Virginia and its inactive Blacksville No. 1 Mine in Pennsylvania, and requested that the U.S. Environmental Protection Agency revoke a deep well injection permit for coalbed methane waste water at the inactive mine.
The DEP also said it has obtained information that the mine pool in the inactive mine is flowing into the mine pool in Blacksville No. 2. Consol has previously said that the wastewater from the inactive Blacksville No. 1 mine is not flowing into the active Blacksville No. 2 mine.
“We have also observed that the levels of chlorides being discharged from . . . the Blacksville No. 2 Mine are unusually high for a discharge solely from a deep mine,” the Pennsylvania DEP said in that Oct. 2 letter. “Although Consol is primarily liable for its discharge from (Blacksville No. 2) and any consequences that result from that discharge, DEP is suspicious of other sources of chlorides that might be discharged into the Blacksville No. 2 Mine or into one of the mine pools connected to the Blacksville No. 2 Mine.”
October 14, 2009
Drilling water may be cause of fish kill
By Don Hopey | Pittsburgh Post-Gazette | October 13, 2009
A heretofore undisclosed underground flow of mine pool and methane gas well drilling water into Consol Energy’s Blacksville No. 2 Mine may have contributed to the salty, polluted discharges that caused the massive, month-long fish kill on Dunkard Creek.
The Pennsylvania Department of Environmental Protection said its stream sampling shows discharges high in dissolved solids and chlorides from the Blacksville No. 2 Mine are the “primary immediate source” of the fish kill that last month wiped out aquatic life on 35 miles of Dunkard Creek along the Pennsylvania-West Virginia border.
The DEP also said in a letter to the West Virginia Department of Environmental Protection, dated Oct. 2, that it has obtained information that water from the inactive Blacksville No. 1 Mine in the Pittsburgh coal seam is flowing into the active Blacksville No. 2 mine pool.
That algae — which may have “hitchhiked” to the Mason-Dixon Line on drilling rigs brought up from Texas
The Pennsylvania DEP
Fish, freshwater mussels, salamanders and aquatic insects started dying on Sept. 1, and continued dying throughout the month. According to the Pennsylvania DEP, the pollution also threatened water quality in the Monongahela River, which is a source of drinking water for 850,000 people in southwestern Pennsylvania.
“The department has been clear all along: This has been a tragic event,” Ms. Humphreys said. “And we are going to take the necessary steps to methodically collect all information so that when we determine the responsible party we can take appropriate enforcement action.” Full story
November 18, 2009
Environmental agencies to check streams for golden algae that caused fish kill
By Don Hopey | Pittsburgh Post-Gazette | November 18, 2009
State and federal agencies are checking southwestern Pennsylvania streams for the non-native, golden algae that had a role in killing aquatic life in 30 miles of Dunkard Creek in September.
Helen Humphreys, a state Department of Environmental Protection spokeswoman, said the department is working with the U.S. Environmental Protection Agency to test 11 streams and the Monongahela River near West Virginia where water-quality monitors show conditions may be suitable to support golden algae. Whiteley Creek, a small warm-water fishery in Greene County just north of the Dunkard Creek watershed, is of particular interest.
Total dissolved solids and chloride levels were high in Dunkard Creek when the month-long fish kill started around Sept. 1. The DEP said stream sampling identified discharges from Consol Energy’s Blacksville No. 2 Mine as the “primary immediate source” of the fish kill, which also threatened water quality in the Mon, the drinking water source for 850,000 people. Full story
December 2, 2009
Feds: Mine discharges led to algae that killed creek life
By Don Hopey | Pittsburgh Post-Gazette | December 2, 2009
A new U.S. Environmental Protection Agency report blames a September bloom of toxic golden algae for wiping out almost all fish, mussels, salamanders and aquatic life on 43 miles of Dunkard Creek along the Pennsylvania-West Virginia border.
The 17-page interim report released today also said mine treatment discharges high in total dissolved solids created the water conditions that allowed the algae, normally found in brackish waters in Southern and Southwestern states, to thrive and bloom.
The EPA also confirmed that its recent stream survey found golden algae on Whiteley Creek, the watershed just north of Dunkard Creek in Greene County. No fish kills have been reported on Whiteley Creek, which also has high concentrations of total dissolved solids or TDS. The survey found no golden algae in 10 other streams or the Monongahela River.
A preliminary estimate by the Greene County Conservation District put the cost of restoring the creek at $30 million
Paul Ziemkiewicz, director of the West Virginia Water Research Institute at West Virginia University, said analysis of the creek water shows that four mine water discharges played a major role in producing the high TDS concentrations in Dunkard Creek. The discharges, high in TDS and sodium sulfates, came from Consol Energy’s Blacksville No. 2 mine and its Loverage Mine, Patriot Coal’s Federal No. 2 mine near the creek’s headwaters and AMDRI’s Shannopin Steel Shaft discharge. Full story
December 3, 2009
EPA pins killing of Dunkard Creek on mine discharges
By Don Hopey | Pittsburgh Post-Gazette | December 3, 2009
Kathy Cosco, a West Virginia DEP spokeswoman, said it’s also learned from golden algae experts during two days of meetings this week that it will be difficult to control the algae’s growth and spread to other bodies of water.
Water chemistry readings taken at the Blacksville No. 2 mine discharge Sept. 9 show sodium at 5,780 milligrams per liter, chloride at 6,120 milligrams per liter and sulfate at 10,800 milligrams per liter — all extremely high and the highest found anywhere on the creek that day.
“High TDS levels are good conditions for the growth of the algae bloom, and that’s what we had at Dunkard,” said Lou Reynolds, an EPA aquatic biologist. The West Virginia DEP has also found high levels of golden algae in Cabin Creek, near Charleston, but has not seen any fish kills. Full story
December 3, 2009
Attorney general to conduct criminal probe into Dunkard fish kill
By Don Hopey | Pittsburgh Post-Gazette | December 3, 2009
The Pennsylvania attorney general has been asked to conduct a criminal investigation of the massive fish kill on 43 miles of Dunkard Creek, near the Pennsylvania-West Virginia border.
Tom Crist, a waterways conservation officer with the state Fish and Boat Commission, said the commission has turned its investigation information over to the attorney general’s office for the purpose of a criminal inquiry.
Len Lichvar, a Pennsylvania Fish and Boat commissioner, said the investigation was referred to the AG in mid-October. Full story
December 5, 2009
Dunkard Creek kill frustrates residents of Greene County
By Don Hopey | Pittsburgh Post-Gazette | December 5, 2009
MOUNT MORRIS, Pa. — As the fatal fall algae bloom has faded, many along this creek that meanders along the Pennsylvania-West Virginia border say they are disappointed about the slow pace of investigations and angry that no one has been held accountable.
The Pennsylvania Fish and Boat Commission has asked the Pennsylvania attorney general to conduct a criminal investigation into the cause of the fish kill. Eric Shirk, a spokesman for the attorney general, said the office is “looking into it,” but declined yesterday to provide details.
“We’re heartbroken about what happened to our creek. I went down to the creek in mid-September to see all the dead fish and I drove away crying”
Raymond Yackel
Another complication for the creek that is adding to the local frustration is Consol’s request to resume mine water discharges from its Blacksville No. 2 mine that were stopped after the fish kill was discovered. The company has said the mine has been filling up and could soon become unsafe for mining. Full story
December 11, 2009
Consol Energy to resume discharging waste water into Dunkard Creek
By Don Hopey | Pittsburgh Post-Gazette | December 11, 2009
Pittsburgh-based Consol asked the West Virginia Department of Environmental Protection for permission to resume the discharges, which contain high concentrations of dissolved solids, or TDS, because water in the active Blacksville No. 2 mine has been rising and could soon affect the safety of miners underground.
At the suggestion of the West Virginia DEP, Consol agreed to shut down its discharges from its Blacksville No. 2 mine, an active mining operation, on Sept. 17, to determine what effect that would have on the then-ongoing fish kill. Full story
WV DEP Order to Consol – 12-21-2009
December 21, 2009
W.Va. OKs resumption of mine discharges in Dunkard Creek
By Don Hopey | Pittsburgh Post-Gazette | December 21, 2009
The West Virginia Department of Environmental Protection has granted Consol Energy’s request that it be allowed to restart discharging water from its Blacksville No. 2 mine into Dunkard Creek, where those discharges contributed to a massive fish and freshwater mussel kill in September.
But the approval, announced by the VWDEP today, expires April 30, and limits the amount of the discharge allowed on a given day in an attempt to reduce the chances that another bloom of toxic golden algae will occur.
The order also requires the Pittsburgh-based Consol to complete and submit a proposal for construction of mine discharge treatment plants for its mines in northern West Virginia by April 15. It must complete construction on the first of those plants, to treat discharges into Dunkard Creek, by May 31, 2013. Full story
WV DEP Order to Consol – 12-21-2009
January 5, 2010
Groups appeal mine drainage permit approval by DEP
Say it allows illegal drainage into creeks
By Don Hopey | Pittsburgh Post-Gazette | January 5, 2010
Environmental groups have appealed Pennsylvania’s November approval of an expanded mine drainage permit that allows the discharge of minimally treated water high in sulfates and dissolved solids from several mines into Dunkard Creek.
According to the appeal filed with the Pennsylvania Environmental Hearing Board last week, the newly amended permit of the Shannopin Mine Dewatering Project in Greene County illegally allows the discharge of thousands of gallons of highly polluted mine water into the creek from Consol Energy’s Humphrey No. 7 Mine.
The amended permit was approved by the state Department of Environmental Protection without the legally required opportunity for public comment, said the appeal by Citizens for Pennsylvania’s Future (PennFuture), a statewide environmental organization, and Friends of Dunkard Creek, a small Greene County conservation group.
“It’s time to reverse this backroom deal and clean up the water”
Jim O’Connell, a board member of Friends of Dunkard Creek
The amended discharge permit contains no limitations on total dissolved solids or TDS, and was granted by DEP’s Mining Division even though a February 2009 report by a DEP biologist found that Shannopin’s discharges contained high levels of dissolved solids that were harming the creek’s aquatic life. Full story
March 1, 2010
W. Va. groups to sue Consol over mine discharge that killed fish
By Don Hopey | Pittsburgh Post-Gazette | March 1, 2010
Two West Virginia environmental groups say they will sue Consol Energy because of its continuing “harmful pollution” in Dunkard Creek, the site of a massive fish kill last September.
Consol’s ongoing pollution discharges into the creek along the West Virginia-Pennsylvania border are authorized in a West Virginia Department of Environmental Protection compliance order issued after the fish kill. But the environmental groups say the order illegally waived existing federal stream protections and called on Consol to stop the mine discharges.
“In allowing Consol to violate water quality standards the past five years, West Virginia DEP was short-sighted to say the least. Extending that permission after the Dunkard Creek event is unacceptable.”
Cindy Rank, mining committee chair for the WV Highlands Conservancy
According to the environmental groups, the West Virginia DEP’s December compliance order lets Consol discharge more chloride pollution from its Blacksville No. 2 mine than federal limits allow.
The groups said chloride pollution can elevate conductivity and levels of total dissolved solids in streams, making them vulnerable to algae blooms, including the toxic, invasive golden algae that the West Virginia DEP has said played a major role in the fish kill.
“The recent Dunkard Creek fish kill was the same wake-up call for the coal industry that the Exxon Valdez spill was for the oil industry”
Jim Hecker, environmental enforcement director at Public Justice in Washington, D.C.
Public Justice, along with the Appalachian Center for the Economy and the Environment, is providing legal representation for the environmental groups. Full story
WV DEP – Order to Consol – 4-23-2010
January 10, 2011
Consol’s plan for mine water tests effectiveness of U.S. efforts
By Don Hopey | Pittsburgh Post-Gazette | January 10, 2011
A dispute over drilling bore holes into Consol Energy’s Humphrey No. 7 deep mine in Greene County without a state permit and the planned pumping and discharge of minimally treated mine water into Dunkard Creek has bubbled over again.
The mining office says AMD Reclamation Inc. drilled the bore holes along the North Branch of Calvin Run in Perry Township into the Consol mine in apparent violation of a requirement to obtain a state mining permit. On Dec. 29, acting on a complaint by Citizens for Pennsylvania’s Future, OSM filed a 10-day notice of violation with the state Department of Environmental Protection, asking it to take action against the ongoing construction project.
The DEP could decide to allow the bore hole drilling to continue without a permit and ask AMDRI to apply for one later, but Kurt Weist, senior attorney for PennFuture, said that’s not the way the permitting process is supposed to work.
A five-year renewal of the Steele Shaft treatment plant’s relaxed discharge permit by DEP’s mining office has been pending for 28 months. DEP’s water management division has recommended that more stringent limits be included in the new discharge permit.
A February 2009 DEP report on an aquatic survey of Lower Dunkard Creek found the Stele Shaft treatment plant discharges during low-flow creek conditions caused “almost four miles of Dunkard Creek to be unable to support fish life where a fishery previously existed.”
A DEP stream assessment document released Dec. 23 listed 34.8 miles of Dunkard Creek as impaired due to contamination by chlorides and dissolved solids from underground mining.
Mr. Weist said the U.S. Environmental Protection Agency should insist that any new mine discharge into the creek should be subject to the full range of pollution controls applicable to all mine drainage pumped from permitted mines. Full story
March 14, 2011
Consol to pay $6 million for Dunkard Creek fish kill
By Don Hopey | Pittsburgh Post-Gazette | March 14, 2011
CORE, W.Va. — Consol Energy announced today that it has agreed to pay $6 million in what the U.S. Department of Justice contends was a mine wastewater discharge that resulted in a large fish kill in Dunkard Creek in West Virginia near the Pennsylvania border.
In a settlement with the Justice Department, Consol did not admit any liability in the discharge.
The Justice Department, however, said the company will pay a civil penalty of $5.5 million to the U.S. Environmental Protection Agency and $500,000 to the West Virginia Department of Natural Resources for Clean Water Act violations at six mines in West Virginia.
The company also announced a series of improvements in mine water treatment that could cost up to $200 million.
The announcement came at a press conference this afternoon in West Virginia near the creek by the local U.S. attorney and environmental officials. Full story
March 14, 2011
EPA: Consol Energy Clean Water Act Settlement
(Washington, DC – March 14, 2011) The U.S. Environmental Protection Agency, U.S. Department of Justice, and state of West Virginia announced today that Consol Energy Inc., the largest producer of coal from underground mines in the United States, has agreed to pay a $5.5 million civil penalty for Clean Water Act violations at six of its mines in West Virginia. In addition to the penalty, Consol will spend an estimated $200 million in pollution controls that will reduce discharges of harmful mining wastewater into Appalachian streams and rivers.
Violations
Between June 2007 and September 2008, Consol discharged mining wastewater containing chloride in excess of its National Pollutant Discharge Elimination System (NPDES) permit limits, in violation of Sections 301 and 402 of the CWA. Specifically, Consol violated the daily maximum limitation for chloride on at least 289 occasions and the monthly average limitation for chloride on approximately 178 occasions.
In addition, from May 2009 through November 2009, Consol violated the narrative water quality standards incorporated into its NPDES permits, which prohibit significant adverse impacts to the chemical, physical, hydrologic, and biological components of the aquatic ecosystem. Consol discharged chloride and total dissolved solids (TDS) at levels that contributed to exceedances of the in-stream conditions necessary to ensure the protection of aquatic life.
The complaint in this matter alleges that discharges of high amounts of chloride and TDS from Consol’s Blacksville 2 and Loveridge mining operations in the Monongahela River Basin contributed to severe impairment of aquatic life and conditions favorable for golden algae to thrive in Dunkard Creek. In September 2009, a species of golden algae bloomed in Dunkard Creek, killing thousands of fish, mussels and amphibians. More
March 15, 2011
Consol to pay $5.5M for Clean Water Act violations
By Don Hopey | Pittsburgh Post-Gazette | March 15, 2011
CORE, W.Va. — Consol Energy will pay a $5.5 million civil penalty to settle hundreds of federal Clean Water Act violations at six of its mines in West Virginia over the past four years, including pollution discharges that contributed to a massive fish kill in 30 miles of Dunkard Creek in the fall of 2009.
Under terms of the agreement, announced Monday at a news conference along a green and springtime-full Dunkard Creek, Consol also will spend $200 million to construct a massive, high-tech mine drainage treatment facility near Mannington, W.Va., by May 2013, that will handle wastewater from multiple mines.
The federal complaint alleges chronic violations of discharge permit limits at Consol’s Blacksville No. 2, Loveridge, Robinson Run and Four States mines in the Monongahela River drainage and at the Shoemaker and Windsor mines, which discharge into tributaries of the Ohio River.
Half of the $5.5 million penalty payment will go to the U.S. Department of Justice and half to the West Virginia Department of Environmental Protection. As is standard procedure in such agreements, Consol did not admit any liability.
Consol President Nick Deluliis, quoted in the release, said the agreement “represents a concrete, proactive demonstration of that commitment”
Katharine Fredriksen, Consol vice president for environmental strategy and regulatory affairs, said 33 miles of pipe will be laid to connect the Mannington treatment plant to the Blacksville No. 2, Loverage, Robinson Run and Four States mines.
In a separate agreement to settle state charges related to the fish kill on Dunkard Creek, Consol agreed to pay $500,000 to the West Virginia Department of Natural Resources. That settlement will be used, at least in part, to help restore Dunkard Creek, which runs along the Pennsylvania-West Virginia border. Full story
March 21, 2011
Pennsylvania AG Charges SW Business with Dumping Millions of Gallons of Drilling, Other Wastewater
PA Environment Digest
Agents from the Attorney General’s Environmental Crimes Section this week filed criminal charges against a Greene County business owner and his company, who are accused of illegally dumping millions of gallons of waste water across southwestern Pennsylvania – including production water from gas drilling operations, sludge from sewage treatment plants and grease water from restaurants that cannot enter normal sewage systems.
Acting Attorney General Bill Ryan identified the defendant as Robert Allan Shipman, 50, of 1487 Toms Run Road, Holbrook. Criminal charges were also filed against Shipman’s business, Allan’s Waste Water Service, Inc., also of Holbrook.
“This was a calculated and long-running scheme to personally profit by illegally dumping waste water, regardless of the potential for environmental damage. Shipman is accused of orchestrating a scheme to dump waste products into streams, mine shafts and business properties across Allegheny, Fayette, Greene, Lawrence, Washington and Westmoreland counties.”
Acting Attorney General Bill Ryan
Ryan said evidence and testimony about the alleged dumping scheme was presented to a statewide investigating grand jury, which recommended the criminal charges that were filed this week. According to the grand jury, Shipman and his company were hired by numerous businesses in the region to haul and dispose of various waste water products. Between 2003 and 2009, Shipman allegedly instructed drivers to mix various wastes together, in what was often referred to as a “cocktail,” and then dump that mixture at locations across the region. Ryan said the purpose of the “cocktail” mixture was to allegedly conceal the true nature of the waste water, allowing it to be disposed of in an improper manner, as well as to increase the volume of disposals that were billed to various customers.
According to the grand jury, Shipman directed drivers to falsify manifests so he could bill customers for the full capacity of their trucks, regardless of how much waste was actually being transported and disposed. He is also accused of instructing other employees to shred and discard actual manifests in order to generate new fraudulent invoices which would be sent to customers, forging drivers’ signatures and other information on those bogus manifests.
During the course of the investigation, agents identified forged manifests for numerous businesses operating in southwestern Pennsylvania, including:
- Washington Penn Plastics
- Penneco Oil Company
- American Oil and Gas
- DynaTec Energy
- PA Land Service
- All Clad Metal Crafters
- CNX
- Coal Gas Recovery
- Precision Marshall Steel Company
- Morgantown Technical Services
- Targe Energy
- Nemacolin Inc.
- Greene Resources
- JesMar Energy
- Luzerne Township Sewage Authority
- Mountain View Oil and Gas
- Allegheny Power, Cracker Barrel
- Menallen Township Sewer Authority
- Unit-Marts Inc.
Additionally, Ryan said that Shipman allegedly instructed drivers to leave water valves open at gas wells, in order to allow production water to flow onto the ground and into nearby waterways – typically after dark or during heavy rains, in order to conceal the illegal discharge. At other times, drivers were instructed to park their trucks in the garage at Shipman’s business and dump the water into a floor drain, which leads directly to a nearby stream.
Ryan said that over the course of the alleged scheme, Shipman is accused of stealing in excess of $250,000 from clients as a result of the overbilling scheme, and improperly disposing of millions of gallons of waste water.
Shipman is charged with a total of 98 criminal counts, including participating in a corrupt organization, criminal conspiracy, theft, forgery, receiving stolen property, pollution of waters, dealing in the proceeds of unlawful activity (money laundering), tampering with public records, and violations of Pennsylvania’s Clean Streams Law, Solid Waste Management Act and Fish and Boat Codes.
Allan’s Waste Water Service is charged with 77 criminal counts for similar offenses.
The criminal charges filed today carry substantial prison terms along with fines in excess of $1.5 million for Shipman and $1.2 million for his company.
Shipman and Allan’s Waste Water Service were both preliminarily arraigned today before Waynesburg Magisterial District Judge D. Glenn Bates. Bail was set at $500,000 apiece.
A preliminary hearing is scheduled for March 25th before Magisterial District Judge D. Glenn Bates.
The case will be prosecuted in Greene County by Deputy Attorney General Amy J. Carnicella of the Attorney General’s Environmental Crimes Section.
Ryan thanked the Department of Environmental Protection and the Fish and Boat Commission for their cooperation and assistance with this investigation.
Drilling Industry Reaction
Pennsylvania’s oil and natural gas industry, represented by the Marcellus Shale Coalition, American Petroleum Institute of PA and the Pennsylvania Independent Oil and Gas Association issued the following joint-statement in response to the indictment:
“Illegal actions that threaten Pennsylvania’s environment and waterways cannot be tolerated. If found guilty of these appalling acts, those charged must be prosecuted to the fullest extent of the law. The oil and natural gas industry speaks with one voice in condemning these unthinkable acts and blatant disregard for the environment.” Source
June 18, 2011
Toxic algae re-emerges near Dunkard Creek, site of fish kill
By Olivia Garber | Pittsburgh Post-Gazette | June 18, 2011
Golden algae found in a pond 100 feet away from Dunkard Creek has prompted environmental officials to monitor the creek, fearing a repeat of the 2009 waterway crisis in which toxins released from the algae triggered a massive fish kill.
The Pennsylvania and West Virginia Departments of Environmental Protection began testing the 43-mile stretch of water along the Pennsylvania-West Virginia border after staff from Consol Energy made the discovery during a routine sampling on June 9.
So far, the golden algae has yet to have a toxic effect on the unnamed pond, nor has it spread to Dunkard Creek. Both departments will continue to monitor the bodies of water.
An agreement with the DEP requires Consol to test Dunkard Creek periodically, and workers noticed that the nearby pond had a golden hue, prompting them to test it. Full story
September 7, 2011
Pa. agency sues Consol over discharge that killed fish
By Don Hopey | Pittsburgh Post-Gazette | September 7, 2011
The Pennsylvania Fish and Boat Commission today sued Consol Energy for mine discharges that caused the massive fish kill on 30 miles of Dunkard Creek along the Pennsylvania-West Virginia border in 2009.
According to the lawsuits filed in West Virginia and Pennsylvania courts, discharges of polluted water from Consol’s Blacksville No. 2 mine caused a bloom of toxic, non-native golden algae that killed more than 42,000 fish, 15,000 freshwater mussels and 6,000 mudpuppies, a large, creek-dwelling salamander.
The lawsuit seeks compensatory damages for the lost aquatic life and lost fishing and recreational opportunities on what was a popular warm-water fishery before the fish kill.
“The devastation to Dunkard Creek was astonishing. It will take decades to restore it to its prior condition.”
John Arway, executive director of the fish commission
The Cecil-based mining and natural gas company paid a $5.5 million civil penalty over the past four years to settle hundreds of federal Clean Water Act violations at the Blacksville No. 2 and five other West Virginia mines, according to the Fish and Boat Commission.
In March, Consol also reached settlements with the U.S. Department of Justice, the U.S. Environmental Protection Agency and the West Virginia Department of Environmental Protection in cases about the Dunkard Creek fish kill. The company paid $500,000 to the West Virginia Department of Natural Resources as compensation for the lost aquatic resources on the West Virginia portion of Dunkard Creek. Full story
September 8, 2011
Commission sues Consol over fish kill
By Don Hopey | Pittsburgh Post-Gazette | September 8, 2011
The lawsuits said an estimated 1,455 fishing trips to the creek were “lost” or never occurred due to the fish kill from mid-September to the end of November 2009. And another 15,299 fishing trips will be lost through 2018 due to the lingering depleted fishery, the suits say.
Shortly after the first fish and mudpuppies started going belly-up in September 2009, water samples taken from the creek at the Blacksville mine treatment facility showed high levels of total dissolved solids, in the 25,000- to 35,000-milligrams-per-liter range, or about the same as in seawater. The federal safe drinking water standard is 500 milligrams per liter.
According to the lawsuit filed in the Circuit Court of Monongalia County, discharges of chloride pollution from Consol’s Blacksville No. 2 and Loveridge mines exceeded daily federal discharge limits for seven months before and after the fish kill. Full story
October 12, 2011
EPA Scientist Points at Fracking in Fish-Kill Mystery
A mysterious fish-kill in Dunkard Creek may have been the result of wastewater from hydraulic fracturing of shale for natural gas
By Mike Soraghan & Greenwire | E&E News | October 12, 2011
BLACKSVILLE, W.Va. — Who killed Dunkard Creek?
Was it coal miners whose runoff wiped out aquatic life in the stream where locals have long fished and picnicked? Or was it Marcellus Shale drillers and the briny discharge from their wells that created a toxic algae bloom that left a miles-long trail of rotting fish along the West Virginia-Pennsylvania state line?
Two years after Dunkard Creek suffered one of the worst fish kills ever in West Virginia or Pennsylvania, the reason for the chemical changes that spawned it remain a mystery.
But the lead EPA biologist on the case has challenged that idea, saying that the most likely explanation for the fish kill involves the environmental effects of Marcellus Shale drilling.
Emails obtained by Greenwire through a Freedom of Information Act request show EPA biologist Lou Reynolds telling colleagues that coal mine drainage is unlikely to be the sole culprit.
“Something has changed in the mine pools,” Reynolds wrote in a November 2009 email. The change, he said, could have come from miners digging deeper into a coal seam.
But it could also be the case, he said, that “Mining companies are disposing of [coalbed methane] and Marcellus water in the mine pool,” or “Mining companies are taking [coalbed methane] and Marcellus water into their treatment ponds. One or any combinations of the above might be happening,” Reynolds wrote. Full story
August 18, 2012
Gas profiteers’ shocking crimes
Allan Shipman was found guilty of illegal dumping, but he’s part of a much bigger problem
By Aaron Skirboll | Alternet | August 18, 2012
Ken Dufalla sits at a table inside Laverne’s Restaurant on Route 188 in Waynesburg, Pa. The former park ranger, 65, is sporting a camouflaged trucker’s hat and enjoying Laverne’s cream of chicken and biscuits with mashed potatoes. It’s midmorning, between the breakfast crowd and the lunch patrons. Waiters and waitresses are attentive and the coffee is flowing.
Before long, Dufalla is joined by a former Marine and Vietnam veteran, 67-year-old Ken Gayman, who dons a black and gold USMC ball cap. The two former Beth-Center High School wrestling practice combatants sprinkle the conversation with passages from the Constitution and speak about defending land and property. The two men are members of an association, but it’s not the Tea Party.
Dufalla and Gayman are members of the Izaak Walton League of America, one of the earliest conservation organizations in the country and according to the national Web site, “formed in 1922 to save outdoor America for future generations.” If the stereotypical environmentalist is still imagined as sandal-wearing and tree-hugging, Dufalla and Gayman will quickly wipe away such caricatures. They are a couple of blue-collar guys, no different than anyone else in Greene County. They simply see what’s going on around them and they don’t like the looks of it.
Dumping Onto the Streets at Night
On March 17, 2011 Greene County resident Robert Allan Shipman and his company, Allan’s Waste Water Service Inc., were charged with illegally dumping millions of gallons of natural gas drilling wastewater, along with restaurant grease and sewer sludge across six counties in Pennsylvania from 2003 to 2009. Pennsylvania is one of several states that sit atop the gas-rich underground rock formation the Marcellus Shale. Hydraulic fracturing, the process used for retrieving the gas, is a water-intensive drilling method that not only requires massive volumes of water to unlock the gas, but also generates millions of gallons of wastewater when the drilling is done.
The two-year investigation by the Pennsylvania attorney general’s office resulted in a total of 98 criminal counts charged against the 50-year-old Shipman and an additional 77 charges levied at his company. Said Nils Frederiksen, spokesman for the attorney general’s office, “He was pouring the stuff in any hole he could find.”
“He was pouring the stuff in any hole he could find.”
Nils Frederiksen, spokesman for the attorney general’s office
Most egregiously, the grand jury presentment detailed how when the demand for Allan’s Waste Water services grew in the summer of 2007, as a result of an uptick in production water (wastewater produced by gas well drilling operations that may contain toxic chemicals) from CNX Gas Co. LLP, a subsidiary of Consol Energy, a company Shipman was hauling for, “Shipman showed the drivers how to leave open the gas well valves and ordered them to discharge production water onto the ground and/or into the nearby waterways.” Drivers’ testimony added, “This activity would typically occur after dark or during heavy rain so that no one would observe the illegal discharge.”
According to the presentment, the investigation of Shipman began after a client of his grew suspicious of illegal dumping after an in-house audit “revealed a large discrepancy in the amount of sludge received by Allan’s Waste Water and the amount of sludge disposed” by the company at treatment facilities. A review of reports by the Department of Environmental Protection confirmed that over 170,000 gallons of sludge were unaccounted for from June 2006 to the summer of 2007.
Shipman “directed them to mix different wastes in their trucks,” a process they termed “cocktailing.”
Drivers of Allan’s Waste Water testified at the grand jury that Shipman “directed them to mix different wastes in their trucks,” a process they termed “cocktailing.” The mixed waste of production water and sewage sludge was subsequently discharged into creeks, ponds and at various Municipal Authorities in the area. Waste was also disposed of at the Morris Run airshaft, located at the abandoned Blacksville Number 1 Mine, a coal mine owned by Consol Energy, which ultimately releases into Dunkard Creek, a stream that flows between Pennsylvania and West Virginia for 37 miles before its confluence with the Monongahela River. Consol had permits from the EPA to dump production water (consisting of coal bed methane water only) into the Morris Run airshaft. Shipman’s company was not permitted to dump at the site.
Sometimes when drivers had remaining production water in their trucks at the end of their shifts, Shipman directed them to empty the production water inside of the company’s garage channeling it through a drain on the floor, which led to Tom’s Run and ultimately again into Dunkard Creek. “The drivers occasionally observed Shipman himself empty tanker trucks in this manner.”
Other Allan’s Waste Water employees described business activities that included forged manifest and fraudulent billing of 17 companies to the tune of more than $250,000. In October 2007, business was so good for Shipman that he and his wife started a second company, Tri-County Waste Water. This company, which operated out of the same building as Allan’s Waste Water, was authorized on February 21, 2008, by the DEP to treat fluids from the oil and gas industry.
Shipman was making “approximately $7 million per year.”
April Morris testimony, secretary for Shipman
April Morris, secretary for Shipman, testified that when she left the company in May 2008, Shipman was making “approximately $7 million per year.”
On March 17, 2011, Shipman was free after posting 10 percent of the $500,000 bail. The next day, the nearby Observer-Reporter warned that his freedom could be short-lived. “The criminal charges filed Thursday carry substantial prison terms upon conviction, along with fines in excess of $1.5 million for Shipman and $1.2 million for his company.”
Harry Enstrom Chapter
Greene County is located in the southwestern corner of Pennsylvania and covers 578 square miles of sprawling green hills and open water, from its southern point at the border of West Virginia to its northernmost location of Morris Township. It is 89.2 percent rural. Its tourism bureau boasts the county is “Nature’s Corner of Northern Charm and Southern Hospitality.”
For residents in small towns like Brave, Dry Tavern and Bobtown, fishing is in their blood. The Monongahela flows north from West Virginia, then snakes through Greene County on its way to meet the Alleghany River in Pittsburgh, where the two rivers form a third river, the Ohio. Ken Dufalla and Ken Gayman have been fishing these waters, also known as Three Rivers, all of their lives. Not so much anymore.
Says Dufalla, “I have a grandson and granddaughter and I’m fishing in West Virginia right now. Here? The streams are polluted.”
Greene County’s Harry Enstrom Chapter of the Izaak Walton League meets on the third Wednesday of each month. Dufalla is the chapter president. Dinner’s at 6 p.m., followed by the meeting from 7 to 9, open to the public. The July meeting was held at the Greene Side Grill at the Greene County Country Club.
Dufalla is no shrinking violet; if he sees something going on that’s not right, he’s not the type to keep it to himself. Or as he likes to say, “I’m 65 years old — I’m too stupid to be afraid and I’m too old to run.” He’s also well versed in the history of his land. Says Dufalla, “I used to be a deputy water waste conservation officer for 21 years, and so I had a pretty good feel that something was wrong with some of the streams.”
On August 2, 2011, Dufalla represented the Harry Enstrom Chapter at a Pennsylvania House Democratic Policy Committee Hearing at Waynesburg Central High School. After a brief definition of the word “pure,” Dufalla opened his speech by reciting Article 1, section 27 of the Constitution of Pennsylvania, which begins: “The people have a right to clean air, pure water and the preservation of the natural, scenic, historic, and esthetic values of the environment.” Section 27 concludes: “As a trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.”
History is an important aspect of what’s going on in Greene County. Dufalla understands his county’s place in the economic growth of America. “In the 1800s, oil and gas were removed from the state and especially Greene County with no regard for the impacts the ‘rush’ had on the environment or on the health and safety of the people,” he told the area’s political leaders. “In the early 1900s came the coal boom era, which brought with it varying degrees of stream and air pollution.” He then discussed the Marcellus gas boom with hopefulness that, if done safely, the economic benefits could very much improve the standard of living in the county, only it should not come in lieu of the health of the people or the land.
Greene County is rich in resources, but despite being at the forefront of energy extraction for over 100 years, it is not a wealthy county. It does not boast the best schools and as of the last census in 2010 the population of 38,686 nearly matched the median household income of $40,498. Somewhere along the line, people who have used this county’s earth made their money and moved on, leaving behind abandoned mines (approximately 1,200 in southwest Pennsylvania and West Virginia), and with them the highly acidic, orange-colored discharges (acid mine drainage) that flow into the region’s creeks and streams. Dufalla doesn’t want to see something similar happen with the oil and gas industry, where area residents are once more left to deal with the leftover waste of long-departed companies.
Izaak Walton’s numbers in Dufalla’s chapter have steadily been on the rise as others have joined who want to lend a hand in stopping the water pollution. In January 2010 the membership at the Harry Enstrom chapter sat at 26; today there are 127 members.
A newer feature is the Citizen’s Water Monitoring program, which has residents who live next to streams take water samples and get personally involved. “We had a certified hydro biologist come in and we trained these citizens with a six-hour course on how to take water samples— how to read and report them. We basically developed an early warning system,” says Dufalla.
Dufalla also writes a weekly column titled “Nature’s Corner,” for the Greene County Messenger, where he often publishes the Izaak Walton water data for the local community. The level of pollutants running through the Monongahela watershed is consistently over the standard. Robert Allan Shipman is part of a much bigger problem.
Guilty
The county seat of Waynesburg is a small college town still holding onto a walking Main Street and a downtown shopping district that runs a few stoplights. All summer, streamers have been hanging from above merchants’ doorways wishing local Olympian, wrestler Coleman Scott, best in London. Set in the middle of town is the Greene County Courthouse. There, at the stoplight of High Street and Washington, a red light forces a line of trucks to idle; gas trucks, water trucks, residual waste trucks, they are now an ever-present sight since the gas companies began fracking in the Marcellus shale, and as the light turns green, the parade of them thunder off down the road. Walk into downtown shops and ask about Allan Shipman and they’ll tell you they knew about it all along. They’d heard about the trucks near the streams. They’d heard about Morris Run and how dozens of Shipman trucks a day would line up and battle to unload waste.
“Citizens are tired of the trucks”
Greene County Sheriff Richard Ketchum
“Citizens are tired of the trucks,” says Greene County Sheriff Richard Ketchum.
When the arrest finally came in March 2011, area residents were elated that the man behind the worst kept secret in Greene County was going to pay for his crimes. Said the sheriff, on behalf of all, “Finally.”
On February 9, 2012, Shipman signed a written plea agreement to 13 criminal charges of illegal dumping, as well as defrauding 17 companies and various municipalities over a six-year period. As part of the agreement, he and his wife, Carolyn, agreed to never “apply for, obtain, or possess” any DEP permits related to environmental activity.
On Friday, June 15, 2012, Deputy Attorney General Amy Carnicella walked into the Greene County Courthouse for the sentence hearing, ready for Shipman to be taken to prison. It was pretty straightforward, as she’d say later; “He did dump waste onto the streets at night and during the rain. This happened over years. It wasn’t a single incident.” On top of it all, he pled guilty. The tentative plea agreement called for imprisonment of up to 16 months. He admitted to the crimes against him. Case closed.
The tentative plea agreement called for imprisonment of up to 16 months. He admitted to the crimes against him.
Sheriff Ketchum stood beside the deputy attorney general after eight hours of testimony and deliberations as the judge was set to announce the sentencing. Ketchum describes Carnicella as someone who was steel-like in her confidence pertaining to jail time for the defendant. The sheriff, however, became convinced fairly quickly into the judge’s reading that Shipman was going to walk. Judge Toothman’s language gave it away for Ketchum. The talk of family tragedy. The judge took a moment to note Shipman’s stepdaughter had recently committed suicide. His wife attempted the same. Beyond that, Toothman spoke of Shipman’s “law-abiding life.” Of how he laid down on his sword by admitting to his crimes. And, of course, there were the tears.
By the time Judge Toothman began crying it was easy to see things were swaying towards the polluter. Everyone could tell. Everyone perhaps except for the deputy attorney general, who Ketchum says believed until the end that jail time was forthcoming. Needless to say when Judge Toothman sentenced Robert Allan Shipman to probation, “She was irate,” Ketchum says, referring to Carnicella.
“She was irate”
Greene County Sheriff Richard Ketchum
The full sentencing order was for seven years probation; fines; court costs; restitution. He was also ordered to work with a water conservation group five hours a week for the next seven years.
Contacted for comment, Carnicella treads lightly. Speaking over the phone, she’s forthcoming but careful with her words. Further litigation is uncertain. Regarding the overall damage to the waterways, “I don’t know how anyone can say that dumping thousands upon thousands of gallons of waste, or raw sewage, of grease … whether it was only buckets … how is that not harmful? This was over many years. Let me ask you this, would you want your small child swimming in this water? I don’t think so.”
“Let me ask you this, would you want your small child swimming in this water? I don’t think so.”
Ten days after the sentence hearing, the deputy attorney general filed a motion for modification of sentence. Toothman denied the request on June 28, 2012. On July 28, the state attorney general filed a notice of appeal with the state Superior Court seeking to overturn the sentencing.
Of note in the DEP’s statement to AlterNet on the Shipman case is that Shipman has already appealed the DEP’s administrative orders “revoking the operating permits for Allan’s Waste Water Company and prohibiting Allan Shipman from any involvement in the waste business including transportation, storage, processing or disposal. Mr. Shipman appealed the administrative orders to the Environmental Hearing Board and litigation is still pending. As such, the matter remains under investigation by the Department.”
Sheriff Ketchum has known Shipman since childhood. “My whole life,” he says, and his summation of the case is that Shipman got rich, then he got off. Ketchum was a former president of Izaak Walton for 10 years and has been sheriff since 1990. He says the damage Shipman inflicted to the land and water are not fully appreciated at the moment and believes the effects of dumping will still be seen 20 years down the road. “Deer, cattle, and all kinds of critters drink from these streams — everything drinks from this water.”
“Deer, cattle, and all kinds of critters drink from these streams — everything drinks from this water. God only knows where he put it all. What we found was incredible. But who knows where else… all the other places he dumped it.”
Sheriff Ketchum
“God only knows where he put it all. What we found was incredible. But who knows where else… all the other places he dumped it.” For the most part, Ketchum says it eventually all went into the water.
Ketchum thinks about one of the waterways affected by the dumping into the Morris Run airshaft. He paints a portrait of Dunkard Creek with 50-inch musky, of large schools of fish. It was a place he fished with his family. On his wall is a photograph of his grandson holding a carp from Dunkard Creek. A beautiful place to fish. He shakes his head. “That poor creek just gets slammed.” Ketchum says.
Dunkard Creek
Billy Craig, an ironworker out of Local 549 in West Virginia, lives in Mt. Morris, Pa., and grew up 100 yards from Dunkard Creek. He enjoyed the creek as a swimming hole and spent countless hours fishing for carp, fresh water drum, small mouth bass, flathead catfish, muskie, and even an occasional walleye. Craig first heard that something was wrong in the creek on September 9, 2009, as he was enjoying a couple of beers at the Legion. That’s when a local property owner stopped in the bar and announced that fish were dying at Dunkard between Mason Dixon Park and Mt. Morris. According to Craig, the water hadn’t look good that whole summer, with the color off, brown and rusty. Still, Billy didn’t think much of it. At least at the time.
A couple of days rolled by until Craig was at the creek and says he witnessed a sludge of water flowing in, closing in on Mt. Morris. That’s when he saw the first of the fish dying at the river mouth where Big Shannon Run empties into Dunkard. Soon, it was more than a dead fish here and there, but rather a couple hundred. Then thousands. Muskies were jumping out of the water. Stressed fish. “You could tell they were being poisoned,” says Craig. Before long, stacks of dead fish could be seen. Three hundred to 400 stacked up together. The survivors battled, fruitlessly attempting to get to the fresh water.
Other members of the Mt. Morris Sportsman Association joined him. In the creek, he repeats, a line of polluted water could be plainly viewed, separated from the fresh water coming in from Shannon Run and other tributaries, as the sludge worked its way down from Blacksville. Fishermen like Craig and his buddies would not soon forget the sight. Dead fish, the smell penetrating the towns along the banks.
Craig called Pittsburgh television stations, both channels 2 and 4. “They always say to call if you see news, so I called,” Craig says. Nobody came. The news was happening. The footage was fresh. Dead fish continued to roll in. Channels 2 and 4 never came. Billy Craig and his friends filmed it themselves. They took photos of some of the dead fish. A 43.5-inch Muskie. A 39.5-inch flathead catfish. “And it takes a lot to kill a catfish,” says Craig.
Channels 2 (CBS affiliate KDKA) and 4 (ABC affiliate WTAE) never came. Billy Craig and his friends filmed it themselves. They took photos of some of the dead fish. A 43.5-inch Muskie. A 39.5-inch flathead catfish. “And it takes a lot to kill a catfish,” says Craig.
Craig says there was no cleanup. “Mother Nature took care of that.” Raccoons and green heron and a host of other animals did what they do. They ate as much as they could. The creek eventually washed the rest of the dead away. Then one night Craig says the water rose 10 inches in the creek. There was no rain. A helpful discharge from the mineshaft to rid the truth away. Craig’s not sure, but he thinks so.
When asked about Robert Allan Shipman’s probation, Craig says, “It’s a slap in the face to everyone that lives around Dunkard.” Adds Dave Headley from nearby Smithfield, “It’s ridiculous that all he got was a slap on the wrist.”
“It’s ridiculous that all he got was a slap on the wrist.”
Dave Headley
Craig has nothing against mining or drilling. His dad was a miner at Blacksville #2, and says there was small kill in his father’s day too. But he just doesn’t understand the lack of concern for the water. Craig and his buddies joined the Izaak Walton league shortly after the fish kill. They began testing Dunkard Creek and recording the data last August and have continued to do so on a weekly basis, usually on Sundays.
Today there’s some people out fishing. But it’s not the same.
The fish kill affected nearly 30 miles of Dunkard Creek. Salamanders, freshwater mussels and almost every other creature living in the creek were dead. In all, according to Sharon Hall, an attorney for the Pennsylvania Fish and Boat Commission, 42,997 fish, 15,382 freshwater mussels and 6,447 mudpuppies (a type of salamander) were killed.
42,997 fish, 15,382 freshwater mussels and 6,447 mudpuppies (a type of salamander) were killed.
Sharon Hall, an attorney for the Pennsylvania Fish and Boat Commission
After three years of research, the cause of the Dunkard Creek fish kill has rested on golden algae (Prymnesium parvum), a naturally occurring microscopic flagellated algae that is normally only found in waters with a high salt content. Worldwide the algae can be found in estuaries where freshwater mixes with seawater, obviously places far from southwestern Pennsylvania. Golden algae originated in the United States in 1985 in Texas and Oklahoma and since that time has stayed along the coast or in southern states, never this far north. Flowback water, millions of gallons per hydraulic fracturing well, is loaded with salts from deep beneath the earth’s surface, and is many times saltier than ocean water. Simply put, salty water caused the golden algae, but what caused the salty water?
In 2011, Consol Energy, the owner of Morris Run air shaft Shipman was dumping into that eventually leads to Dunkard Creek, agreed to pay $5.5 million and spend up to another $200 million on a state-of-the-art water treatment plant to be up and running by May 2013, but the company admitted no guilt. Instead an attorney for the company spoke of it in terms of mystic or God-like phenomena. According to The Intelligencer and Wheeling News Register, Consol attorney Carol Marunich claimed that “the presence of (golden algae) in the Dunkard Creek watershed were the result of natural forces beyond the control,” of the company, and later referred to the algae as an “unprecedented, abnormal, and extraordinary event.”
In her suit on behalf of the Pennsylvania Fish and Boat Commission (the fact that the PA DEP did not file against Consol is something that causes much ire among Billy Craig and many Greene County residents), attorney Sharon Hall described Consol’s “illegal, toxic discharges,” and termed the deeds “willful, wanton and malicious …”
In July 2009, two months prior to the fish kill, Dr. Paul Ziemkiewicz of the West Virginia Water Research Institute and a group of researchers were testing water in Dunkard. Ziemkiewicz remembers the water as stagnant with “extremely high” electronic conductivity (EC) readings and a total dissolved solids (TDS) level of 9,000 mg/L. TDS “represents the total concentration of dissolved substances in water … made up of inorganic salts, as well as a small amount of organic matter,” according to the Safe Drinking Water Foundation. DEP data shows that the TDS level would rise in the months ahead to a level of 21,764 mg/L on September 21 taken at Blacksville #2 Mine Outfall 005, with water quality standards in Pennsylvania set at a TDS of 500 mg/L. Fresh unadulterated water normally has a TDS level of less than 100 mg/L.
Of more concern to Ziemkiewicz are the levels of bromide in this region’s water. Bromide is another chemical compound that is naturally seen in seawater. Or according to DEP state files, “Bromide in fresh water is typically found in areas influenced by saltwater intrusion or another bromide source (well drilling brines, industrial chemicals and agricultural chemicals).”
Myron Arnowitt, the Pennsylvania state director for the Clean Water Action, puts bromide into geographical perspective. “It’s really only coastal communities that generally deal with bromides as a water contamination problem. Obviously most of PA is outside of the Delaware estuary.”
“Bromide is not normally found in coal mining.”
Dr. Paul Ziemkiewicz of the West Virginia Water Research Institute
When asked if bromide was historically consistent with mine discharges in the area, Ziemkiewicz responds, “bromide is not normally found in coal mining.”
Dufalla put it a bit more bluntly: “Now here’s the million dollar question, how is bromide coming out of coal water discharges, and why do the permits allowing these discharges not address bromides? The reason they don’t address bromides is because they never had bromides coming out of coal before. 1.8 trillion gallons of water beneath southwestern PA and Northern West Virginia because the land has been mined out. A giant honeycomb underneath the region is filled with water. I understand the brine and magnesium, but we’re getting high levels of strontium and high levels of bromide coming out of these discharges. It’s not supposed to be there. Where is it coming from? I asked the DEP and cannot get an answer … EPA-no answer … Alpha Natural Resources [the company putting out many of the discharges] no answer … Nobody knows where they’re coming from, yet here they are. If you start putting two and two together, it’s a pretty good thought that just maybe, some of this Marcellus wastewater has made it into our mines. Just maybe.”
Bromide, in and of itself, is not harmful to humans. Says Dr. Ziemkiewicz, “Bromide is only problematic after it goes through a drinking water utility and is converted to THM [trihalomethane] and associated compounds which are, indeed, harmful.”
When bromide meets the chlorine at a public water intake system it forms trihalomethane, which affects the central nervous system and has been linked to several types of cancer, as well as birth defects.
When bromide meets the chlorine at a public water intake system it forms trihalomethane, which affects the central nervous system and has been linked to several types of cancer, as well as birth defects. And, says Ziemkiewicz, this is “a big concern for municipal water authorities.”
Trihalomethanes have caused the residents of Carmichaels, Pa., to share in these concerns. Boiling tap water advisories, recommendations to drink bottled water, a water buffalo set up at the local fire department to supply residents with clean drinking water — these have all become standard fare in Carmichaels since the gas boom began. And headlines such as the following from the Herald Standard from June 14, 2011, no longer come as a surprise: “Carmichaels Water Contaminated Again.”
While a lot has been written about contamination of well water due to hydraulic fracturing, what about the tap water? In the midst of Carmichaels’ ongoing problem, municipal president Dan Bailey vented to the local papers in 2011: ”What upsets me is DEP knows what’s causing this yet they’re letting drillers dump that water into wastewater plants that don’t test it before they dump it into the river,” Bailey said. ”This is not caused by our plant. It’s caused by DEP not regulating what they are dumping into the river.”
The New York Times reported, “In late 2008, drilling and coal-mine waste released during a drought so overwhelmed the Monongahela that local officials advised people in the Pittsburgh area to drink bottled water. E.P.A. officials described the incident in an internal memorandum as ‘one of the largest failures in U.S. history to supply clean drinking water to the public.’”
Wild West Years
In the summer of 2008, the Monongahela River was teeming with high TDS. This period coincides with the Wild West years of Marcellus Shale drilling. Prior to 2007, newspapers hardly mentioned the words, as gas wells began popping up quietly across rural Pennsylvania. (Go to Google News and search for “Marcellus Shale” and a single result will emerge with these words, with no results at all returned prior to 2006.) The DEP was caught flat-footed, and illegally or not, as there were not many rules in place, let alone any recommendations as to what to do with the wastewater, Pennsylvania streams and rivers were flooded with waste, which would in hindsight lead one to think this would make surface levels rise. But this is leaving out one important factor, which is that gas-drilling companies were also taking a tremendous amount of water out of the waterways, as each drilling site demands four million gallons of water per well. Following fracking operations this water would be returned to the waterways filthy. Combine this with low summer water levels and this threw the dilution factor completely off tilt in 2008.
Says Arnowitt, of Clean Water Action, “The sewage plants at that time was their main way of getting rid of the wastewater.” But sewage treatment cannot get rid of the salts and bromides from production water.
Left to their own devices, that is, unregulated, the gas industry turned to guys like Allan Shipman, and then they turned a blind eye. In a DEP file, an executive summary of the third and fourth quarters of 2008 disclosed, “Based on the speciation there appears to be a strong correlation between THM formation and elevated source water bromide concentrations in the Monongahela River.”
Yet it wasn’t until the spring of 2011 that this agency requested, not required, water treatment plants to stop accepting Marcellus wastewater. In the 2011 statement, DEP secretary Michael Krancer said, “While there are several possible sources for bromide other than shale drilling wastewater, we believe that if operators would stop giving wastewater to facilities that continue to accept it under the special provision, bromide concentrations would quickly and significantly decrease.” The statement added: “Removing TDS from water also removes bromides.”
It was a great step, even if a late step. Arnowitt is not entirely convinced that treatment plants have stopped accepting gas drilling wastewater even at this point, more than a year later, saying that between five and 10 treatment plants were still accepting natural gas drilling wastewater according to the most recent data Clean Water Action has, which is from July through December 2011. “It’s been a little bit hard to completely pin down,” Arnowitt says. “Once every six months gas well operators are required to send something to the state saying where they’ve sent their wastewater,” with the last report showing, “there were a few that showed greatly reduced intake, but there were still a few gas wells that showed they were sending wastewater to plants that service water disposal.”
The tracking system for gas drilling wastewater, now years into the process, is still extremely lacking.
“There is a system that exists in Pennsylvania,” says Arnowitt. “The problem is that it’s not transparent to the public; you and I can’t track shipments of wastewater from the well to the eventual source of where it’s disposed of. Theoretically the DEP could do that, but even they don’t have all the information sitting in their office in Harrisburg.” Millions of gallons of wastewater produced a day, buzzing down the road, and still nobody’s really keeping track. “There’s no public oversight,” says Arnowitt.
Recycling efforts, which are bringing much self-congratulation from the gas industry lately, also aren’t where they need to be at this point. Arnowitt says, “Recycling is not very regulated. You can get into these storage situations that can have lots of problems.” Such as the use of PVC pipes to move the reused water from well to well. “And it’s leaking in places. It’s not a very well contained process.” Moreover, Dufalla will point out that the word “recycling” is really a misnomer and should more accurately be stated as “reusing.”
At this moment, bromide levels continue to register elevated readings. Dr. Ziemkiewicz shared recent numbers showing the high level of 5.3 mg/L on June 27, 2012 from samples taken from Whiteley Creek in Greene County. Lloyd Richard of Carmichaels Water Authority says they are still struggling to keep their trihalomethane numbers in compliance. In late August or early September they will test a chlorine dioxide disinfecting system aimed at reducing high levels of THM. Down the road at the Tri-County Municipal Water Authority, where historically, they haven’t had the same type of problems as Carmichaels, plant manager Jeff Kovach says that since the high TDS levels of 2008, the authority still has had to send out letters “four or five times,” to alert their customers of high THM levels. Kovach, who has worked at Tri-County for 37 years, says that prior to 2008, the company’s THM levels weren’t an issue and they were never in violation.
David Argent, professor of wildlife and fisheries sciences at California University of Pennsylvania, shares his thoughts on the health of the Monongahela River today, the source of drinking water for nearly 1 million people. “The Monongahela has had a rather tragic history of water quality issues stemming from mining and hydrologic changes associated with the dams … Because the river serves as a drinking water supply for hundreds of thousands of people as well as a carrier of ‘treated’ waste and as a recreational destination for many, I am ever concerned that we have pushed the system beyond its assimilative capacity to provide us with clean water while at the same time carry our byproducts away. The fish communities we study certainly have recovered from mining, but there are new threats emerging that may not only impact fish, but also human health.”
With all of the money spent on machinery by the coal industry and the companies extracting oil and gas from the earth, the question has to be asked, why isn’t the same money invested in dealing with the second part of the process and cleaning up their own mess — in properly treating this massive amount of leftover waste? Dilution has become the treatment solution, an idea that drives Dufalla into fits of anger, as he mocks the waste experts’ call of dilution is the solution to pollution. But that’s not the best way, says Dufalla. “The best way is prevention. Prevention is the key to preservation.”
Says Arnowitt, “The oil and gas industry came in here pretty big in 2008, started drilling a lot of wells and all of a sudden they had millions of gallons of wastewater. They really hadn’t set up a real infrastructure for how to treat it. It’s kind of like a chemical company came to Pennsylvania and said we’re going to build this big chemical plant, we need to start operating it right now, and yes, there’s going to be wastewater. We’ll get the wastewater treatment plant on line three years from now, but until then we’ll just have to figure out something else. That’s exactly what the gas industry did here. I think it was inevitable that someone like Allan Shipman would come along. The gas industry was willing to pay people money to take this waste off their hands. They weren’t predisposed to ask a lot of questions. And I think for Allan Shipman it was money he didn’t feel like he could refuse. And he didn’t have all the solutions worked out either with what to do with the stuff, so at a certain point he just figured out a way to get rid of it.”
Running Red
On July 31, 2012, Ken Dufalla invited me to accompany him to test water throughout Greene County. That way, he said, I could see for myself, and nothing would be lost in translation. Joining us was another Harry Enstrom member, Chuck Hunnell, a 69-year-old former U.S. history teacher. Prior to teaching, Hunnell was a Lieutenant Commander in the Navy and a former Vietnam veteran. Again, anyone trying to shove the earth’s health aside and throw around outdated labels towards those looking out for the environment needs to face reality. These aren’t a bunch of hippies smoking pot and preaching utopian ideals. These are men and women who’ve already fought for this country. As Ken Gayman told the Greene County Messenger on June 22, “Why did I go to fight in Vietnam and see my fellow Marines die in battle only to have big polluters destroy the country?” Gayman added, “It’s time for people to stand up and take America back.”
Chuck Hunnell would like nothing more than to simply enjoy the waters he fishes in retirement, but once you see your streams turn blood red, it’s hard to ignore. Retired or not, Hunnell is out there all day with us.
Just a few days before my visit, after a period of high rain in the region, Dufalla’s team alerted the DEP of discharges running through Smith Creek a half mile south of downtown Waynesburg. Smith Creek was our first stop.
We tested water near where a discharge from Emerald Mine (Outfall 001) enters the stream. Emerald Coal or Emerald Mine, a vast mining area, sits high on a hill obscured by trees. Guards man the gates at the entrance; a fortress-like setting. It’s impossible to view what’s going into the ponds that are then piped into Smith Creek, only what comes out. Our water sampling results showed TDS 1890 of mg/L, which far exceeds the recommended standard of less than 500 mg/L and an EC reading of 3760 µS/cm, which has a standard of 1,000 µS/cm. (EC or electrical conductivity measures inorganic dissolved ionic components in water, such as its salinity. People can taste saltiness in water at EC levels of 1,500 to 2,000.) The color of the stream was light red. Minnows viewed days earlier according Dufalla were now absent in the impaired water. Only flies and a northern banded water snake were seen.
Next we visited what Dufalla called “the number-one polluter in Greene County” — Emerald Mine Bleeder #5, discharge 016, a treatment pond for coal mine discharge water, which leads to Whiteley Creek, before emptying into the Monongahela above Carmichaels, the community experiencing all of the trouble with THM. For bromide sampling, Dufalla relies on the sampling from the DEP or WRI (data filed at http://www.monriverquest.org/map.cfm). As he wrote in a recent Greene County Messenger column, certified samples from this site in August 2011 showed bromide levels exceeding 11 mg/L. Our tests for EC exceeded the instrument maximum of 10,000 µS/cm for EC and the maximum 5,000 mg/L for TDS. Again, this is for post-treated water.
At each subsequent testing site, sampling revealed levels that far exceeded the standard set by the state. Each site being a tributary leading to the Monongahela, a source of drinking water. Whiteley Creek: EC 3400 µS/cm, 1710 TDS mg/L. Clyde Mine Discharge leading to Ten Mile Creek: TDS 4000 mg/L.
Shipman’s activities opened up a Pandora’s box. While his more heinous crimes, such as dumping in the rain and on the roads, are tough to get past, it might be his use of an old mine shaft that has the most importance moving forward, because the discharges coming from mines today do not match what’s historically been recorded in this area, such as the case with bromide. As Adam Federman wrote in Earth Island Journal, “Untreated acid mine discharges typically have conductance values of between 1,000 and 1,500 µS/cm.” Testing with Dufalla and Hunnell, our sampling revealed levels as high as 10 times that limit, and from “treated” discharges.
Nobody wants to say these high numbers are related to Marcellus drilling. But the fact is that it really doesn’t matter to Dufalla. Just do something about numbers. Period. Whatever the source. Mine water needs to be released, yes; the only thing people in Greene County want to see is a better way than simply releasing it into water. This will cost money. But so does the first part of the process, getting the resources out of the ground. Cleaning up should not be optional.
Seeing “treated” water discharged into the streams and creeks of Southwestern Pa. was quite honestly unnerving. Seeing streams running red, or bubbling with methane while a fisherman angled nearby simply doesn’t seem right. It’s disturbing to see farms with their animals now fenced from fresh water streams in order to keep the animals safe. However, to the seasoned scientists who have studied the region or to the officials in charge of regulating the area, there is a shocking casualness. Mine drainage has been flowing into the waterways for decades. To many, the fact that mine drainage is undergoing any treatment whatsoever is good enough, at least better than during the ’70s when mine water was discharged directly into the Mon, and when the river flowed a consistent metallic orange color.
On Dufalla’s tour, a DEP agent drove by Ten Mile Creek as we took samples. When the agent stopped and emerged from his white jeep, the first thing we noticed were his clean black shoes without a speck of dirt, which to the three of us, suggested that this water pollution agent hadn’t been near water in some time. All afternoon I had listened as Dufalla grumbled about DEP bureaucracy and the pass-it-on-down-the-line mentality he’s experienced between the various divisions within the agency: water, oil and gas, mining, etc. So when the initial reaction from the agent to the pollution we showed him (he had no idea, in his clean black shoes) was, “Well, this falls under the mining division,” we would later share a laugh at my jaw-dropping response.
“Well, this falls under the mining division”
PA DEP agent
When we asked what division he was with and he replied “Water,” we alerted him to the fact that we were showing him polluted water that was flowing into more water and an area of recreation for the community, Ten Mile Creek. He quickly figured it out and showed his preparedness as he shuffled around to take some pictures, but first he had to replace the batteries in his camera.
If I had to venture to guess, I’d wager that these discharges, which were nearly triple that of what his own agency recommends, would not be addressed any time soon. The DEP agent took a stab at an explanation, then blamed Shipman.
Says Dufalla later, “I got news for you, Shipman’s not the only one dumping stuff into those streams, and the rest of them are getting permits to do it.”
Arnowitt echoes Dufalla and says he believes it’s entirely possible that the type of dumping Shipman did for years is still going on. “Allan Shipman certainly ran a more extensive dumping operation than I would expect most to run, but that being said, it would be very easy for any number of entities — who are maybe mostly running a legitimate operation, but sometimes things happen and they don’t know what to do with a shipment, and it gets illegally dumped. I don’t think that would be hard to do.”
“There’s very little independent sampling oversight by the DEP,” says Arnowitt and theorizes why this is the case. “It is both a resource problem and a will to do it problem. Truly, DEP has had its budget cut very significantly — it’s been cut 42 percent in the last four years, so they have a lot less to work with. The place they’ve really invested inspection resourses has been at the actual well site, but inspecting what happens with the waste that leaves the well site, like wastewater, there’s very little inspection there, and for the most part the state goes off of what the permit holder sends into them. So that’s definitely a hole in the system that still exists.”
Party Line
In August 2011, New York State Senator Greg Ball took a tour of Pennsylvania to properly verse himself on hydraulic fracturing prior to making up his mind on the issue. A common sense approach. Upon return, he urged New York Governor Andrew Cuomo to do likewise.
Ball, an outdoorsman and fisherman, has much in common with the residents of Greene County. Recounting his tour of Pennsylvania, Ball says he saw a process begin without the manpower and funding in place to regulate the process and he witnessed firsthand how tough it has been for the state to hold the oil and gas industry accountable. He saw “real fears in residents of Pennsylvania” — farmers and property owners deceived on whether water was clean or contaminated. One of his biggest elements of concern is the fact that billions of gallons of clean drinking water are being used or affected by this industry.
“This is a limited resource,” Ball says. “The fact that millions of gallons of drinking water is being allowed to be contaminated is a fundamental issue.”
Besides health concerns regarding the issue of clean water, he’s troubled about the overall quality of life for citizens. He wants New York “to avoid the devastation seen in other states,” to avoid the haste he saw in other states, the overall rush to expedite permits and drilling before the proper framework was in place on how to regulate this industry. “Wastewater needs to be treated as an industrial waste,” says Ball. “New York needs to set an example on how this industry needs to be held accountable.”
While at a national level, Ball says it’s essential to eliminate the “Halliburton loophole,” which exempts fracking from compliance with the Safe Drinking Water Act.
“Clean water has nothing to do with politics”
New York State Senator Greg Ball (R)
“Clean water has nothing to do with politics,” says Ball, a Republican. “It shows why politics suck in America.” Ball says citizens need to stop pointing at each other and focus on the real problem, which is the amount of money and influence currently corrupting the government, the red-carpet treatment some industries receive.
Clean water should be something beyond politics. Or in the words of Billy Craig, an ironworker from the Mason Dixon line, “If we don’t have clean water, we’re all in trouble. None of us are going to survive. Clean water is something we all need.”
What also remains to be explained is why it took two weeks for a full scale investigation of the Dunkard Creek fish kill to begin.
VIDEO: Verna Presley shares her story about the heartbreaking disaster.
December 28, 2012
State files appeal of New Freeport hauler’s sentence
Observer-Reporter | Dec 28, 2012 updated Dec 5, 2017
The state attorney general’s office filed an appeal with the state Superior Court this week, claiming Greene County Judge Farley Toothman’s probationary sentence given to Robert Allan Shipman was unreasonable and “did not fit the crime.”
Sentence “did not fit the crime”
State AG Office
Earlier, however, Toothman defended his sentence, claiming “probation complies with the law and is within the court’s discretion.”
Shipman, of New Freeport, was accused of illegally dumping drilling wastewater, sewage sludge and restaurant grease into area streams, a mine shaft and on various properties throughout the area between 2003 and 2009.
He also was accused of stealing more than $250,000 by overbilling companies that hired him to haul and dispose of wastewater by-products.
Shipman pleaded guilty in February to two counts each of theft, conspiracy, receiving stolen property and tampering with public records, 10 counts of unlawful conduct and eight counts of pollution of waters.
On June 15, Toothman sentenced Shipman to 7 years of probation and ordered him to pay $257,316 in restitution to companies he over-billed, $100,000 in fines, $25,000 to the attorney general’s office and to serve 1,750 hours of community service.
The commonwealth recommended Shipman be sentenced in the standard range of the sentencing guidelines for the most serious charge of theft, which is 9 to 16 months in jail.
In the appeal, Chief Deputy Attorney General James P. Barker said Shipman stole money from customers, falsified documents to mislead the state Department of Environmental Protection and polluted a number of streams without any regard to the consequences of this actions.
Toothman said Shipman had no past criminal record, was cooperative, remorseful and promptly paid restitution, fines and costs.
The court also recognized Shipman’s individual and family history, evidence of his character and the fact he would never again receive a DEP permit.
“If Shipman had any overwhelming sense of remorse, he would have entered a guilty plea without an agreement, or at least expressed some sense of remorse to the victims; he did neither,” Barker said.
Barker also said Shipman was able to make charitable contributions because he was running a criminal enterprise, using his employees as participants in this unlawful conduct.
In support of his sentence, Toothman further questioned the factual basis of the plea agreement and cited the state’s failure to consistently prosecute polluters.
Barker countered that there is “no real evidence that the environmental laws are not enforced. Moreover, the sentencing court’s orders and opinions relating to sentencing reflect a clear hostility toward the attorney for the Commonwealth and toward anyone charged with enforcing the environmental laws, as the sentencing court was of the view that these persons have not done an adequate job.”
The case involved three separate aspects of criminal activity, the appeal notes.
There was the theft of more than a quarter of a million dollars by Shipman from 17 separate entities; there was the disposal of gas well production water into various streams and other waterways; and there was the falsification of records that would have allowed DEP to fulfill its duty to monitor the waterways.
“A review of the record show that the rationale for the sentence expressed by the trial court is not supported by the record or simply does not warrant this lenient treatment of a serial thief, polluter and deceiver,” Barker said.
“Indeed, the record makes clear that the sentence was unreasonable and was the product of partiality, prejudice, bias or ill will,” Barker concluded.
Barker then cites a statement Toothman made that Barker refers to as “most remarkable.”
Toothman said, “That the plea agreement was negotiated to the complete satisfaction of the Commonwealth, defendant and the court who are now all bound together to enforce it. It may now seem that the ease and convenience of a guilty plea has become the tyranny of good intentions for the Commonwealth …”
Barker said the tyranny of good intentions refers to a book Toothman apparently has taken to heart, “The Tyranny of Good Intentions: How Prosecutors and Law Enforcement Are Trampling the Constitution in the Name of Justice,” by Paul Craig and Lawrence Stratton, the latter being the director of the Stover Center for Constitutional Studies and Moral Leadership at Waynesburg University.
Based on anecdotal evidence, Barker said, Stratton and his co-author argue prosecutors abuse the plea negotiation process to deprive citizens of their constitutional rights (completely ignoring the fact that defendants such as Shipman have the right to counsel and the right to negotiate a favorable plea agreement and failing that, the right to proceed to trial).
“Needless to say, there is no room in the sentencing process for a judge to base a decision on such teachings,” Barker said. Source
April 9, 2014
W.Va. court to decided legality of suit over Dunkard Creek
Consol Energy allegedly polluted waters
By Don Hopey | Pittsburgh Post-Gazette | April 9, 2014
The West Virginia Supreme Court will decide if Pennsylvania’s Fish and Boat commission can sue Consol Energy in West Virginia for damages related to the massive and ecologically devastating September 2009 fish kill on Dunkard Creek.
The court, meeting Tuesday morning in Charleston, W.Va., heard arguments on whether the Pennsylvania Fish and Boat Commission has legal standing to sue Consol in West Virginia courts for alleged pollution discharges from its Blacksville No. 2 mine into the creek, which meanders back and forth between the two states.
The commission is alleging that Consol’s mine, located just south of the Pennsylvania state line, discharged high concentrations of dissolved solids and chlorides that made the creek as salty as seawater. That caused a bloom of toxic golden algae that killed 42,000 fish, 15,000 freshwater mussels and more than 6,000 mudpuppies in 30 miles of the creek, the commission said.
Sharon Hall, an attorney representing the commission, told the court her client is a designated representative of Pennsylvania, and has standing to bring the lawsuit in West Virginia because that’s where the polluted mine water originated that flowed into Dunkard Creek’s Greene County segments.
“The Fish and Boat Commission is only asking for its day in court and the opportunity to have the merits of the case decided by a jury,” Ms. Hall said in court.
Consol’s attorney, Christopher Power, said the commission’s authority is limited to Pennsylvania causes of action and violations of Pennsylvania law, and the commission had no authority to file a suit seeking damages under West Virginia’s Water Pollution Control Act. He added that Consol continues to deny liability for killing off aquatic life in the stream.
“[Commission] counsel has suggested the damages were caused directly by the respondent [Consol], and we dispute that,” Mr. Power said.
Although Consol denies responsibility, the U.S. Environmental Protection Agency and the West Virginia Department of Environmental Protection identified Consol’s mine discharges as the cause of the toxic algae bloom that killed the creek’s aquatic life.
In March 2011, Consol paid the EPA a $5.5 million civil penalty to settle the Dunkard Creek charges and hundreds of other federal Clean Water Act violations at its Blacksville No. 2 mine and five other mines in West Virginia. That agreement also required Consol to construct a $200 million mine drainage treatment facility near Mannington, W.Va., to handle wastewater from multiple mines. As is standard procedure in such settlements, Consol did not admit any liability.
“It’s difficult to believe that Consol paid $5.5 million and agreed to spend $200 million on a water treatment facility out of generosity”
John Arway, Fish and Boat Commission executive director
“It’s difficult to believe that Consol paid $5.5 million and agreed to spend $200 million on a water treatment facility out of generosity,” said John Arway, Fish and Boat Commission executive director. “We believe that the chemicals that killed the fish and mussels originated at the Blacksville No. 2 mine, and are confident we have the authority to pursue this case.”
The commission is seeking compensatory damages for the aquatic life that was killed and lost recreational opportunities. It is also seeking punitive damages to deter future pollution.
If the West Virginia Supreme Court rules that the commission has standing, it would need to overrule a county circuit court’s decision in July 2013 to dismiss the case due to lack of standing. The state Supreme Court has no deadline for issuing its ruling.
May 9, 2014
Pa. agency can sue Consol for fish kill
W.Va. court decision reverses a lower-court ruling from July
By Jonathan D. Silver | Pittsburgh Post-Gazette | May 9, 2014
The Pennsylvania Fish and Boat Commission will be allowed to proceed with a seven-figure lawsuit in West Virginia against Consol Energy Inc. over a 2009 massive fish kill in Dunkard Creek, the West Virginia Supreme Court has ruled.
The decision Thursday reversed a lower-court ruling in July that dismissed the case on a claim by Consol that the state agency did not have the legal standing to sue in West Virginia.
Now the case is remanded to Judge Russell M. Clawges Jr. in the Circuit Court of Monongalia County.
“We’re very happy that the West Virginia Supreme Court agreed with us that the West Virginia courts are in a position to hear our complaint against Consol so we can get on with the merits of the case and discuss them,” John Arway, the commission’s executive director, said Friday.
“We’re just anxious to bring this to a conclusion because it’s been a long time and we believe the anglers and boaters who fish and boat on Dunkard Creek should be made whole along with their resources that have been damaged.”
Mr. Arway put the value of the state’s losses at between $1 million and more than $4 million.
He said the estimate takes into account the time it takes to recover from such losses as the blow dealt to the population of adult muskellunge, a popular fish for anglers. Many of the muskellunge that died in the fish kill were between eight and 10 years old, Mr. Arway said.
Kate O’Donovan, a Consol spokeswoman, said, “We have not yet had a chance to review the opinion, and therefore have no comment.”
Consol previously reached a consent decree with the U.S. Department of Justice and Environmental Protection Agency.
The federal agencies alleged that discharge of pollutants into Dunkard Creek from Consol’s West Virginia mining operations flowed into Pennsylvania. That led to the growth of a toxic algae that killed more than 42,000 fish, 15,000 mussels and 6,000 salamanders in Greene County in 2009.
Consol did not admit wrongdoing. But the energy company agreed to pay a $5.5 million civil penalty to settle the Dunkard Creek charges and hundreds of other federal Clean Water Act violations at its Blacksville No. 2 mine and five other mines in West Virginia.
The company also agreed to spend more than $200 million on a facility to treat its mine water using state-of-the-art technology.
“The water flowing into Pennsylvania should now be clean but it’s really dependent on West Virginia,” Mr. Arway said. “We have to trust that they’re complying with both state and federal law to make sure something like this doesn’t happen again.”
Under a separate consent decree Consol paid the West Virginia Department of Environmental Protection $500,000 for loss of fish and aquatic life.
In 2011 the Fish and Boat Commission sued Consol over the fish kill and “loss of recreational opportunities for Pennsylvania anglers,” estimating the total impact at more than $1 million.
Consol successfully challenged the suit in Monongalia County circuit court, arguing that the commission’s authority was limited to Pennsylvania causes of action and violations of Pennsylvania law. Source
August 5, 2015
State settles lawsuit with mining firm over fish kill on Dunkard Creek
By Don Hopey | Pittsburgh Post-Gazette | August 5, 2015
The Pennsylvania Fish and Boat Commission has reached a tentative settlement of a lawsuit that sought damages for mine discharges that caused a massive fish kill on more than 40 miles of Dunkard Creek along the Pennsylvania-West Virginia border in 2009.
Details of the proposed settlement were not available Wednesday, but it will include financial payments by Murray Energy Corp. to the fish commission for damage to the aquatic life of the creek caused by discharges of polluted water from Consol Energy’s Blacksville No. 2 mine. The lawsuit was originally filed against Consol Energy in September 2011, but Murray Energy inherited the legal action when it bought the Consolidation Coal Co. from Consol in 2013.
The salty discharges from the Consol mine spawned a bloom of toxic, golden algae, normally found in Texas and other Southwestern states, that killed more than 42,000 fish, 15,000 freshwater mussels and 6,000 of a type of large salamander called mudpuppies.
Consol, the Cecil-based mining and natural gas company that owned the Blacksville No. 2 mine at the time of the fish kill, paid a total of $5.5 million in civil penalties in 2011 to settle hundreds of federal Clean Water Act violations at six mines it owned in West Virginia, including the pollution discharges that contributed to the Dunkard Creek fish kill. Consol also paid $500,000 to the West Virginia Department of Natural Resources as compensation for the lost aquatic resources on the West Virginia portions of Dunkard Creek.
September 14, 2015
Murray Energy, PFBC agree on $2.5 million settlement related to 2009 fish kill at Dunkard Creek
By Don Hopey | Pittsburgh Post-Gazette | September 14, 2015
Murray Energy Corp. has agreed to pay the Pennsylvania Fish and Boat Commission $2.5 million to settle damages related to a massive 2009 fish kill on Dunkard Creek, along the Pennsylvania-West Virginia border in Greene County, that was caused by discharges from mines then owned by Consol Energy.
The 2011 Fish Commission civil lawsuit had sought compensatory and punitive damages from Consol for the pollution discharges from the company’s Blacksville No. 2 and other mines in West Virginia that killed more than 42,000 fish, 15,000 freshwater mussels and 6,000 hellbenders, a type of foot-long salamander also called “mudpuppies.“
Murray Energy inherited the legal action from Consol when it bought the Consolidation Coal Co. mines from the Cecil-based mining and natural gas drilling company in 2013. Ohio-based Murray agreed to settle the case just before a scheduled hearing in a West Virginia Court last month, but the amount of the settlement was announced Monday.
“We’re pleased that we’ve reached a settlement and can close this chapter of the Dunkard Creek case,” said John Arway, executive director of the fish commission. “But it will take many more years to restore the creek to its prior condition. The devastation was astonishing. PFBC biologists collected 40 species of fish and 14 species of mussels that were killed by the incident. Among the dead mussels was the Pennsylvania endangered snuffbox mussel.”
“The devastation was astonishing. PFBC biologists collected 40 species of fish and 14 species of mussels that were killed by the incident. Among the dead mussels was the Pennsylvania endangered snuffbox mussel.”
John Arway, executive director of the fish commission
According to the fish commission, all of the $2.5 million penalty will be deposited in a restricted “Fish Fund” account and used toward recreational fishing and boating activities in the Dunkard Creek watershed. Full story
September 16, 2015
Murray to pay $3.3 million for Consol’s safety violations
By Anya Litvak | Pittsburgh Post-Gazette | September 16, 2015
For the second time this week, Murray Energy Corp. has agreed to pay up for the mistakes of Cecil-based Consol Energy Inc. which sold five West Virginia mines to Murray two years ago.
The Ohio-based coal operator reached a settlement with the Mine Safety and Health Administration that resolves 1,753 safety violations at those mines. Murray will pay a fine of $3.3 million, a discount of about 35 percent from the violations’ initial assessment of $5.1 million.
The mines — Blacksville No. 2, Robinson Run No. 95, Shoemaker, Loveridge No. 22 and McElroy Coal — have been under Murray’s control since December 2013.
“We believe this will allow Murray to focus its time and effort on current and future safety, health and compliance issues,” said Joseph Main, assistant secretary of labor for mine safety and health.
On Monday, Murray agreed to a $2.5 million settlement with the Pennsylvania Fish and Boat Commission over a 2009 fish kill in Dunkard Creek caused by discharges from mines then owned by Consol Energy. Source
October 16, 2016
Outdoors notebook: Slow recovery for Dunkard Creek fish
By John Hayes | Pittsburgh Post-Gazette | October 16, 2016
Last week, at a public meeting in Greene County, state Fish and Boat Commission staff said smallmouths were thriving and muskellunge, walleye and sauger were rebounding in the stream that experienced one of Pennsylvania’s most serious fish kills. But serious problems remain.
A recent stream assessment found that native rock bass, carp, freshwater clams and mudpuppies have not repopulated in a 37-mile stretch of the stream that winds across the Pennsylvania-West Virginia line. According to Fish and Boat, that uneven recovery of ecologically important species is a sign that serious water quality problems remain. Full story
UPDATED: December 5, 2017
State files appeal of New Freeport hauler’s sentence
Observer-Reporter | Dec 28, 2012 updated Dec 5, 2017
The state attorney general’s office filed an appeal with the state Superior Court this week, claiming Greene County Judge Farley Toothman’s probationary sentence given to Robert Allan Shipman was unreasonable and “did not fit the crime.”
Earlier, however, Toothman defended his sentence, claiming “probation complies with the law and is within the court’s discretion.”
Shipman, of New Freeport, was accused of illegally dumping drilling wastewater, sewage sludge and restaurant grease into area streams, a mine shaft and on various properties throughout the area between 2003 and 2009.
He also was accused of stealing more than $250,000 by overbilling companies that hired him to haul and dispose of wastewater by-products.
Shipman pleaded guilty in February to two counts each of theft, conspiracy, receiving stolen property and tampering with public records, 10 counts of unlawful conduct and eight counts of pollution of waters.
On June 15, Toothman sentenced Shipman to 7 years of probation and ordered him to pay $257,316 in restitution to companies he over-billed, $100,000 in fines, $25,000 to the attorney general’s office and to serve 1,750 hours of community service.
The commonwealth recommended Shipman be sentenced in the standard range of the sentencing guidelines for the most serious charge of theft, which is 9 to 16 months in jail.
In the appeal, Chief Deputy Attorney General James P. Barker said Shipman stole money from customers, falsified documents to mislead the state Department of Environmental Protection and polluted a number of streams without any regard to the consequences of this actions.
Toothman said Shipman had no past criminal record, was cooperative, remorseful and promptly paid restitution, fines and costs.
The court also recognized Shipman’s individual and family history, evidence of his character and the fact he would never again receive a DEP permit.
“If Shipman had any overwhelming sense of remorse, he would have entered a guilty plea without an agreement, or at least expressed some sense of remorse to the victims; he did neither,” Barker said.
Barker also said Shipman was able to make charitable contributions because he was running a criminal enterprise, using his employees as participants in this unlawful conduct.
In support of his sentence, Toothman further questioned the factual basis of the plea agreement and cited the state’s failure to consistently prosecute polluters.
Barker countered that there is “no real evidence that the environmental laws are not enforced. Moreover, the sentencing court’s orders and opinions relating to sentencing reflect a clear hostility toward the attorney for the Commonwealth and toward anyone charged with enforcing the environmental laws, as the sentencing court was of the view that these persons have not done an adequate job.”
The case involved three separate aspects of criminal activity, the appeal notes.
There was the theft of more than a quarter of a million dollars by Shipman from 17 separate entities; there was the disposal of gas well production water into various streams and other waterways; and there was the falsification of records that would have allowed DEP to fulfill its duty to monitor the waterways.
“A review of the record show that the rationale for the sentence expressed by the trial court is not supported by the record or simply does not warrant this lenient treatment of a serial thief, polluter and deceiver,” Barker said.
“Indeed, the record makes clear that the sentence was unreasonable and was the product of partiality, prejudice, bias or ill will,” Barker concluded.
Barker then cites a statement Toothman made that Barker refers to as “most remarkable.”
Toothman said, “That the plea agreement was negotiated to the complete satisfaction of the Commonwealth, defendant and the court who are now all bound together to enforce it. It may now seem that the ease and convenience of a guilty plea has become the tyranny of good intentions for the Commonwealth …”
Barker said the tyranny of good intentions refers to a book Toothman apparently has taken to heart, “The Tyranny of Good Intentions: How Prosecutors and Law Enforcement Are Trampling the Constitution in the Name of Justice,” by Paul Craig and Lawrence Stratton, the latter being the director of the Stover Center for Constitutional Studies and Moral Leadership at Waynesburg University.
Based on anecdotal evidence, Barker said, Stratton and his co-author argue prosecutors abuse the plea negotiation process to deprive citizens of their constitutional rights (completely ignoring the fact that defendants such as Shipman have the right to counsel and the right to negotiate a favorable plea agreement and failing that, the right to proceed to trial).
“Needless to say, there is no room in the sentencing process for a judge to base a decision on such teachings,” Barker said. Source
May 15, 2020
Greene County judge charged with judicial misconduct
By Lacretia Wimbley | Pittsburgh Post-Gazette | May 15, 2020
A Greene County judge faces charges of judicial misconduct in the handling of several criminal cases, including one in which he ordered a woman jailed for 25 days in alleged retaliation for a 2017 incident involving his law clerk.
The Pennsylvania Judicial Conduct Board filed a 21-count complaint against President Judge Farley Toothman, who serves on the Greene County Court of Common Pleas. The complaint was filed Thursday with the state Court of Judicial Discipline.
The Judicial Board also accused the judge of attempting to cover up misdeeds by having courthouse staff sign non-disclosure agreements. One such employee, a custodial worker, refused, the complaints states.
The judge could not be reached for comment on the charges but told the Observer-Reporter newspaper Thursday night that the complaint was regrettable.
Judge Toothman has 30 days to respond to the complaint.
If the Court of Judicial Discipline finds Judge Toothman to be guilty of any of the charges in the complaint, a hearing will be held to determine what sanction should be imposed. Sanctions include censure, suspension, fines and removal from office. Full story
December 7, 2020
Judge Toothman resigning from bench in Greene County
WAYNESBURG – Judge Farley Toothman is resigning from his seat on the bench next month just before he was expected to go to trial on charges of judicial misconduct.
Toothman, who had already stepped down from his position as president judge at the Greene County Courthouse, sent his letter of resignation to Gov. Tom Wolf on Friday announcing his departure, effective Jan. 4.
Toothman has been on “temporary leave” from the bench since Oct. 5 after he was accused of judicial misconduct in the handling of several cases when the state Judicial Conduct Board filed a 21-count complaint against him in May.
The charges go back to an incident in 2017 in which he allegedly interfered with a retail theft investigation into his law clerk at a Waynesburg convenience store. He also is accused of interfering with a county probation staff meeting to learn who was handling the probation for a woman, who accused his law clerk of shoplifting at that store, involved in an unrelated lower court case. He sentenced the woman, who was performing community service, to a month in jail for unpaid fines.
Other complaints against him include retaliating against a janitorial employee, and improperly handling a case involving the division of marital property and another over a protection from abuse.
Toothman was nominated by former governor Ed Rendell in March 2009 to fill the seat
Toothman was nominated by former governor Ed Rendell in March 2009 to fill the seat vacated when H. Terry Grimes retired, and he was confirmed by the state Senate seven months later. Toothman won a full 10-year term on the bench in 2011, and later took over as president judge upon William Nalitz’s retirement. His term is set to expire in January 2022. Full story
March 19, 2022
Court of Judicial Discipline sanctions former judge Toothman for misconduct
By Mike Jones | Observer-Reporter | March 19, 2022
Former Greene County president judge Farley Toothman will be barred from ever serving on the bench again and be required to write letters of apology to those he “victimized,” but he will not face any additional sanctions for his judicial misconduct.
The state Court of Judicial Discipline announced its sanctions Thursday against Toothman for “bullying others” inside and outside of his courtroom in two cases in which he was found to have committed misconduct as judge.
“Judge Toothman’s misconduct is motivated by personal anger at two people who offended him,” the eight-judge panel wrote. “His dictatorial actions are reprehensible. Misuse of the powers of the judiciary to satisfy one’s personal animosities is among the worst offenses a judge can commit.”
The court ruled in July that Toothman “engaged in misconduct so extreme that brought the judicial office into disrepute” when he retaliated against a courthouse employee and a person on probation. The panel found that Toothman abused his time on the bench and “committed serious misconduct” in two cases that violated judicial conduct rules in 10 of the 21 counts brought against him in 2020.
“Judge Toothman’s clearly improper conduct was blatant and inexcusable,” the panel wrote in its sanctions opinion. “No jurist should ever behave in such a manner.”
Judge Thomas Flaherty wrote a concurring opinion disagreeing with the decision to remove Toothman from the bench since he resigned as judge in January 2021. Flaherty also took exception with Toothman being required to write letters of apology to the people he wronged.
Toothman could have faced more severe punishment, such as fines and even revocation of his state pension and benefits.
Nevertheless, the state Judicial Conduct Board that filed the charges will now contact the victims in the case to see if they would like a letter of apology from Toothman.
“The conduct at issue here involves two incidents of bullying another as part of a personal grudge or fit of pique,” the panel wrote in its sanctions order. “The misconduct by Judge Toothman is serious and had a detrimental effect on those he targeted.”
The panel said Toothman “brought considerable disrepute” to the judiciary; however, it acknowledged that he admitted wrongdoing and has “voiced contrition” over his behavior. The four-page order effectively closes Toothman’s judicial misconduct case and he will face no further punishment.
The Judicial Conduct Board filed the complaint against Toothman in May 2020, and he announced that October that he was taking a temporary leave from the bench. He later relinquished his duties as president judge and resigned from the bench in January 2021. Toothman had served as a judge in Greene County for 11 years. Full story
More
WV.gov Dunkard Creek 2009 Fish Kill Information & Links about Golden Algae
West Virginia DEP Resources – Order / Press Release / General Information
- CONSOL Consent Decree – Treatment Systems with the Judge’s Stamp
- CONSOL Consent Decree – Treatment Systems with Appendices
- CONSOL Consent Decree – Natural Resources and Aquatic Life Claims
- CONSOL Consent Decree – Press Release
- Golden Algae Growth Rate Final Report
- DEP – Order to Consol – 4-23-2010
- Golden Algae Meeting Summary
- DEP Dunkard Creek Update – Mount Morris, PA
- DEP Order to Consol – 12-21-2009
- DEP Order to Consol – 12-21-2009
- Dunkard Fish Kill Presentation
- Press Release 10-5-2009
- Press Release 9-21-2009
- Clemson University – Analysis for Prymnesium Parvum (Golden Algae) Presence and Density Counts
- WVDEP Fish Kill Data Collection and Location Information from October 2009
- University of Oklahoma – Prymnesium Parvum (Golden Algae) Analysis
- Multi-Agency (Both PA and WV DEP and EPA) Chemistry Data Results (including Chloride)
The Energy Age 