W.Va. court rules on Dunkard Creek suit

May 9, 2014

The West Virginia Supreme Court ruled Thursday that the Pennsylvania Fish and Boat Commission can sue Consol Energy in West Virginia for damages related to the September 2009 fish kill in Dunkard Creek.

The commission filed suit in September 2011 in Monongalia County, W.Va., claiming discharges from Consol’s coal mines in northern West Virginia contributed to a fish kill that spanned 30 miles of stream in both states.

The commission estimated 42,997 fish, 15,382 mussels and 6,447 mudpuppy salamanders died in the kill in early September 2009. It estimated damages for loss of aquatic life and loss of recreational opportunities at more than $1 million.

The commission claims the fish kill was cause by toxins released by golden algae, which thrived in the high levels of chloride and total dissolved solids discharged from Consol’s Blacksville No. 2 and Loveridge mines.

It filed suit in West Virginia citing federal preemption doctrine that limits state law claims for interstate water pollution caused by a “point source” in another state, according to the Supreme Court opinion. The doctrine, the commission said, requires any such claim be based on the law of the state where the point source is located.

West Virginia earlier settled with the company on issues regarding the kill. In March 2011, Consol agreed to pay $500,000 to West Virginia for natural resources lost in the West Virginia portion of Dunkard Creek during the kill.

The company also reached settlements with the U.S. Department of Justice, U.S. Environmental Protection Agency and the West Virginia Department of Environmental Protection in regard to Clean Water Act violations.

Though it did not admit liability, the company agreed to pay a $5.5 million civil penalty to settle Clean Water Act violations at six mines in West Virginia and spend $200 million to building a water treatment plant to treat high levels of chlorides discharged at four underground mines in northern West Virginia.

The commission filed the lawsuit with the Monongalia County Circuit Court seeking damages for the loss of aquatic life, costs incurred investigating, cleaning up and documenting the fish kill and future costs associated with stream restoration.

However, Consol soon asked the suit be moved to federal court maintaining West Virginia common law claims were preempted by the Clean Water Act.

The federal court disagreed, saying the Clean Water Act allows for state law causes of action under the law of the source state, and remanded the case to the Monongalia Court Circuit Court.

Consol then filed a motion with the circuit court asking the case be dismissed on grounds the circuit court lacked jurisdiction. The circuit court judge agreed and granted the motion finding the commission was only authorized to bring civil suits for damages as a result of violations of Pennsylvania law.

The Supreme Court addressed the issue of whether the commission has standing to bring the action in West Virginia.

Consol argued the commission could only file civil suits for damages as a result of violations of Pennsylvania law, citing a section of the Pennsylvania Fish and Boat Code. The commission, however, argued it has broad statutory authority under the code and related case law regarding the implicit powers of governmental agencies.

The Supreme Court agreed with the commission. “A plain reading of the statute demonstrates PFBC possesses broad statutory authority to commence ‘a civil action against any person who kills any fish,’” the court said.

“ … The statute clearly accords PFBC the authority to pursue litigation to seek redress on behalf of the citizens of the Commonwealth when fish are killed by the actions of others.”

The court sent the case back to Monongalia County for further proceedings.

Kate O’Donovan, spokeswoman for Consol, said the company has not yet had time to review the opinion and therefore has no comment.

Timothy D. Schaeffer, the commission’s director of policy and planning, said the commission is pleased with the decision and will continue to pursue the case to ensure the state “is compensated for this enormous loss of aquatic life.”

The commission also filed an action regarding the matter in Pennsylvania to preserve any remedy it might have in the state; however there has been no activity on the case, Schaeffer said.

Bob Niedbala worked as a general assignment reporter for the newspaper for 27 years in the Greene County bureau. He received a bachelor’s degree in English from the University of Pittsburgh.

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