niedbala@observer-reporter.com
The state Department of Conservation and Natural Resources has sued Consol Energy Inc., claiming the company's mining activities were responsible for damaging the dam at Ryerson Station State Park.
The civil lawsuit, filed Thursday in Allegheny County Common Pleas Court, seeks more than $58 million in damages and alleges Consol deceived DCNR about the risks of damage from mining beneath the park.
The 62-acre Duke Lake was drained July 29, 2005, after inspections by DCNR and the Department of Environmental Protection revealed expanding cracks in the 45-year-old concrete dam. A month later, DCNR removed part of the spillway to prevent water from backing up in the lake bed during heavy rains.
The complaint alleges Consol knew there was an increased risk of damage to the dam as a result of its mining and intentionally concealed that knowledge from DCNR.
Consol knew from experience that mining beneath the high hill to which the dam abutted would cause "horizontal stresses" at the base of the hill, increasing pressure and forces on the dam, the lawsuit said.
The company, however, continued to maintain to DCNR that its mining activities would not harm the dam.
"Given the increased risk of catastrophic damages, which did in fact occur, the conscious decision by Consol to not advise DCNR of the true facts was irresponsible, reckless and indifferent," the suit states.
"The actions of Consol employees with regard to the misrepresentations and concealment were incurred within the scope of their duties and were carried out with the intent to further Consol's 'for profit' interests at the expense of public safety and protected public natural resources," it said.
DCNR is seeking compensatory damages to cover the costs of replacing the dam as well as unspecified punitive damages.
The department estimates it will cost more than $38 million to replace the dam and restore the lake. It estimates additional damage to the park's natural resources at more than $20 million.
Tom Hoffman, vice president of external affairs for Consol, said Friday that the company had not yet had a chance to review the complaint.
The company's Bailey Mine had mined a significant distance from the dam, more than 1,200 feet, Hoffman said.
"We have not seen evidence presented that mining is the cause of the dam cracking," he said. Hoffman also said the company's mining plans had been approved by DEP.
Officials from DEP's Bureau of Mines previously have said the mine came about 900 feet from the dam and they believed this was far enough away to prevent any damage.
But Phil Coleman, executive director of the Center for Coalfield Justice, said he questions the method DEP uses to determine where subsidence damage will occur above a mine.
"The state of Pennsylvania is doing the right thing in suing Consol," Coleman said. "But the state is also complicit in the way it has permitted mining and the way it continues to do so."
DEP determined the dam was outside the "angle of draw," the surface area above the mine that is expected to be effected by subsidence.
"They've taken the illogical position that the standard angle of draw is always the angle (that determines where damage will occur) and it's impossible that anything will happen outside that angle," he said.
DEP should admit surface damage can occur outside the area included in the angle of draw, he said. If the standard is invalid, DEP will have to consider expanding the surface area where mining companies are presumed liable for damages, he said.
DCNR spokeswoman Christine Novak declined further comment on the lawsuit Friday.
DCNR earlier had filed a "notice of intent" with the court indicating it planned to sue the company. DCNR officials said then that the department was in discussion with Consol regarding the dam.
An investigation of what caused the dam to crack was prepared for DCNR by an independent consultant, Gannett Fleming Inc. DCNR has refused to release the firm's $1.2 million study, citing potential litigation.
DCNR would only say the investigation ruled out any natural causes in regard to damage to the dam.
DCNR announced in November that it would begin design work to replace the dam. The design is expected to take at least 18 months to complete; an additional 18 months or more will be needed for construction of the new dam, it said.