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 kate.white@wvgazette.com or 304-348-1723.
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