Aug 3, 2015 4 min read

The Pennsylvania Fish and Boat Commission reached a tentative settlement in a lawsuit against Consol Energy that claims water discharged from its mines in northern West Virginia, now owned by Murray Energy Corp., led to the September 2009 fish kill in Dunkard Creek.

The commission filed suit in September 2011 in Monongalia County, W.Va., against Consol, alleging the discharges from its mines resulted in a fish kill that spanned 30 miles of the stream in both states.

“We’ve reached a tentative settlement but will not announce the details of the settlement until an agreement has been signed,” Eric Levis, commission spokesman, said in an email Monday afternoon.

Though Consol is named in the suit, the liability was assumed by Murray Energy in December 2013 when Murray purchased Consol’s northern West Virginia mines, Consol spokesman Brian Aiello said.

The case was scheduled to go to trial today in Monongalia County Circuit Court, but was removed from the court calendar after the court was informed of a settlement, a court spokesman said.

Murray Energy spokesman Gary Broadbent also said the settlement is not yet final and, therefore, he could not comment on it.

“Murray Energy Corp. was not involved in the events or circumstances in this case, in any way, as it assumed the defense of this action after its acquisition of Consolidation Coal Co. in December 2013,” he said in an email statement.

Circumstances that led to the loss of aquatic life in Dunkard Creek was caused by a naturally occurring golden algae bloom, Broadbent said further. “While this bloom was unfortunate, Dunkard Creek is recovering naturally at a very rapid rate and aquatic life is now thriving,” he said.

In its lawsuit, the comission claims damages for loss of aquatic life and loss of recreational opportunities exceeded $1 million.

It estimated 42,997 fish, 15,382 mussels and 6,447 mudpuppy salamanders died in the kill. It also sought damages for costs incurred investigating and cleaning up after the kill and for future costs associated with stream restoration.

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

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

Consol earlier asked the suit be moved to federal court, maintaining West Virginia law was preempted by the Clean Water Act. However, the federal court disagreed 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 court lacked jurisdiction. The circuit court judge agreed finding the commission could only bring a civil suit for damages as a result of violations of Pennsylvania law.

In May 2014, the West Virginia Supreme Court reversed that decision and sent the case back to Monongalia County for further proceedings.

West Virginia earlier settled with Consol 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, Consol 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.