Supreme Court: Pa. Agency Can Sue Over Fish Kill in W.Va.

Charleston Gazette
9 May 2014
By Kate White, Staff writer

A Pennsylvania aquatic conservation group can sue Consol Energy in West Virginia over the 2009 Dunkard Creek fish kill, the state Supreme Court ruled Thursday.

The Pennsylvania Fish and Boat Commission appealed a Monongalia County Circuit Court judge’s ruling that said the agency didn’t have standing to sue under West Virginia law.

Dunkard Creek is a 45-mile stream that runs across the Pennsylvania and West Virginia border. An investigation found the release of toxins made conditions ripe for golden algae to bloom and grow, ultimately killing massive numbers of fish.

Federal agencies never pursued relief for damages that occurred in Pennsylvania waters, according to the opinion.

Without admitting liability, Consol agreed to pay $5.5 million after the U.S. Department of Justice and the Environmental Protection Agency sued Consol under the Clean Water Act in U.S. District Court in West Virginia’s Northern District. Consol also agreed to spend more than $200 million on a treatment facility to treat its water before it’s discharged into waterways across the country.

In a separate settlement, Consol agreed to pay the West Virginia DEP $500,000 for loss of fish and aquatic life.

In 2011, PFBC filed suit against Consol in Monongalia County Circuit Court. Its lawsuit stated that it filed in that court based on a law that said claims must be filed where the source of the pollution was.

The lawsuit estimated more than 42,000 fish, comprising 40 species, were killed in Pennsylvania waters.

It claimed the loss of aquatic life and recreational opportunities amounted to more than $1 million in damages.

Consol removed the case to federal court, but a judge later allowed it to return to state court, according to the opinion.

Once back in front of Monongalia Circuit Judge Russell Clawges Jr., Consol filed a motion asking Clawges to dismiss the agency’s complaint on grounds the circuit court lacked jurisdiction. Consol said PFBC couldn’t allege loss of aquatic life in West Virginia because the West Virginia Water Pollution Control Act would be the only way to seek recovery, according to the opinion, and that act doesn’t protect aquatic life in another state.

Clawges sided with Consol.

However, the state Supreme Court wrote that PFBC has “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 lawsuit now goes back for further proceedings before the Monongalia circuit judge.

Reach Kate White at or 304-348-1723.

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