The West Virginia Supreme Court will decide if Pennsylvania's Fish and Boat commission can sue Consol Energy in West Virginia for damages related to the massive and ecologically devastating September 2009 fish kill on Dunkard Creek.
The court, meeting Tuesday morning in Charleston, W.Va., heard arguments on whether the Pennsylvania Fish and Boat Commission has legal standing to sue Consol in West Virginia courts for alleged pollution discharges from its Blacksville No. 2 mine into the creek, which meanders back and forth between the two states.
The commission is alleging that Consol's mine, located just south of the Pennsylvania state line, discharged high concentrations of dissolved solids and chlorides that made the creek as salty as seawater. That caused a bloom of toxic golden algae that killed 42,000 fish, 15,000 freshwater mussels and more than 6,000 mudpuppies in 30 miles of the creek, the commission said.
Sharon Hall, an attorney representing the commission, told the court her client is a designated representative of Pennsylvania, and has standing to bring the lawsuit in West Virginia because that's where the polluted mine water originated that flowed into Dunkard Creek's Greene County segments.
"The Fish and Boat Commission is only asking for its day in court and the opportunity to have the merits of the case decided by a jury," Ms. Hall said in court.
Consol's attorney, Christopher Power, said the commission's authority is limited to Pennsylvania causes of action and violations of Pennsylvania law, and the commission had no authority to file a suit seeking damages under West Virginia's Water Pollution Control Act. He added that Consol continues to deny liability for killing off aquatic life in the stream.
"[Commission] counsel has suggested the damages were caused directly by the respondent [Consol], and we dispute that," Mr. Power said.
Although Consol denies responsibility, the U.S. Environmental Protection Agency and the West Virginia Department of Environmental Protection identified Consol's mine discharges as the cause of the toxic algae bloom that killed the creek's aquatic life.
In March 2011, Consol paid the EPA a $5.5 million civil penalty to settle the Dunkard Creek charges and hundreds of other federal Clean Water Act violations at its Blacksville No. 2 mine and five other mines in West Virginia. That agreement also required Consol to construct a $200 million mine drainage treatment facility near Mannington, W.Va., to handle wastewater from multiple mines. As is standard procedure in such settlements, Consol did not admit any liability.
"It's difficult to believe that Consol paid $5.5 million and agreed to spend $200 million on a water treatment facility out of generosity," said John Arway, Fish and Boat Commission executive director. "We believe that the chemicals that killed the fish and mussels originated at the Blacksville No. 2 mine, and are confident we have the authority to pursue this case."
The commission is seeking compensatory damages for the aquatic life that was killed and lost recreational opportunities. It is also seeking punitive damages to deter future pollution.
If the West Virginia Supreme Court rules that the commission has standing, it would need to overrule a county circuit court's decision in July 2013 to dismiss the case due to lack of standing. The state Supreme Court has no deadline for issuing its ruling.
Don Hopey: email@example.com or 412-263-1983. First Published April 8, 2014 11:29 PM