Pa. agency can sue Consol for fish kill

W.Va. court decision reverses a lower-court ruling from July

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The Pennsylvania Fish and Boat Commission will be allowed to proceed with a seven-figure lawsuit in West Virginia against Consol Energy Inc. over a 2009 massive fish kill in Dunkard Creek, the West Virginia Supreme Court has ruled.

The decision Thursday reversed a lower-court ruling in July that dismissed the case on a claim by Consol that the state agency did not have the legal standing to sue in West Virginia.

Now the case is remanded to Judge Russell M. Clawges Jr. in the Circuit Court of Monongalia County.

"We're very happy that the West Virginia Supreme Court agreed with us that the West Virginia courts are in a position to hear our complaint against Consol so we can get on with the merits of the case and discuss them," John Arway, the commission's executive director, said Friday.

"We're just anxious to bring this to a conclusion because it's been a long time and we believe the anglers and boaters who fish and boat on Dunkard Creek should be made whole along with their resources that have been damaged."

Mr. Arway put the value of the state's losses at between $1 million and more than $4 million.

He said the estimate takes into account the time it takes to recover from such losses as the blow dealt to the population of adult muskellunge, a popular fish for anglers. Many of the muskellunge that died in the fish kill were between eight and 10 years old, Mr. Arway said.

Kate O'Donovan, a Consol spokeswoman, said, "We have not yet had a chance to review the opinion, and therefore have no comment."

Consol previously reached a consent decree with the U.S. Department of Justice and Environmental Protection Agency.

The federal agencies alleged that discharge of pollutants into Dunkard Creek from Consol's West Virginia mining operations flowed into Pennsylvania. That led to the growth of a toxic algae that killed more than 42,000 fish, 15,000 mussels and 6,000 salamanders in Greene County in 2009.

Consol did not admit wrongdoing. But the energy company agreed to pay 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.

The company also agreed to spend more than $200 million on a facility to treat its mine water using state-of-the-art technology.

"The water flowing into Pennsylvania should now be clean but it's really dependent on West Virginia," Mr. Arway said. "We have to trust that they're complying with both state and federal law to make sure something like this doesn't happen again."

Under a separate consent decree Consol paid the West Virginia Department of Environmental Protection $500,000 for loss of fish and aquatic life.

In 2011 the Fish and Boat Commission sued Consol over the fish kill and "loss of recreational opportunities for Pennsylvania anglers," estimating the total impact at more than $1 million.

Consol successfully challenged the suit in Monongalia County circuit court, arguing that the commission's authority was limited to Pennsylvania causes of action and violations of Pennsylvania law.

Jonathan D. Silver: jsilver@post-gazette.com or 412-263-1962.


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