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Pennsylvania agency gets high court's approval to proceed with lawsuit for damages from 2009 Dunkard Creek fish kill

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The state Supreme Court of Appeals says a Pennsylvania Fish and Boat Commission lawsuit to recover damages from Consol Energy for the 2009 Dunkard Creek fish kill can proceed in West Virginia.

Monongalia County Circuit Judge Russell M. Clawges Jr. had ruled PFBC didn't have standing in West Virginia to file the suit, which claims the Commonwealth sustained more than $1 million in damages to fish and aquatic life after a toxin referred to as "golden algae" killed thousands of fish in Dunkard Creek. The suit said tests indicated elevated levels of chloride and total dissolved solids in the creek, and claims Consol's Blacksville No. 2 and St. Leo mines contributed substantially to the high saline conditions the algae thrives in.

Dunkard Creek is a 45-mile stream that runs across the Pennsylvania-West Virginia border.

The suit noted that without admitting liability, Consol had entered into a consent decree with the Department of Justice and U.S. Environmental Protection Agency for a $5.5 million civil penalty and a more than $200 million treatment facility to process mine water before it's discharged. A separate consent decree required Consol to pay the West Virginia Department of Environmental Protection an additional $500,000 for loss of fish and aquatic life.

The federal government didn't pursue damages for Pennsylvania, however, so in August 2011 PFBC requested authorization from the Commonwealth's attorney general to initiate a civil suit against Consol. The suit, filed the following month, seeks compensatory damages to cover PFBC's share of the killed fish, estimated to be more than 42,000 fish and more than 15,000 freshwater mussels, as well as punitive damages, attorney fees and court costs.

Consol had petitioned to move the case to U.S. District Court for the Northern District of West Virginia, claiming PFBC's claims were pre-empted by the Clean Water Act. The federal court, however, remanded it to Monongalia County Circuit Court, saying that while the CWA governs actions based on interstate water pollution it protects the opportunity to file a cause of action under state law.

Following remand, Consol moved to dismiss the suit, contending PFBC's legal authority to allege claims for loss of aquatic life is limited to causes of action filed in the Commonwealth. The circuit court judge in Monongalia agreed, dismissing the suit and ruling that PFBC is only authorized to bring civil suits for damages as a result of violations of Pennsylvania law and “narrow and explicit language” of the applicable state code does not allow an implied right for the agency to bring a cause of action in West Virginia.

PFBC appealed, citing two assignments of error – the court finding it lacked standing and that simply getting the blessings of the Pennsylvania attorney general to suit did not establish standing.

The state Supreme Court, however, said the sole issue on appeal is whether PFBC is entitled to have a West Virginia Circuit Court decide the merits of its complaint if a jury decides it has proven a connection between the fish kill and Consol.

“We find that PFBC has a substantial interest in the fish and aquatic life under its control sufficient to give it standing to file suit in West Virginia and bring West Virginia common law tort claims against Consol in the Circuit Court of Monongalia County to seek recovery of damages as a result of the 2009 fish kill. The pertinent statute confers standing to PFBC “to recover damages in a civil action against any person who kills any fish.”

“Further, PFBC is a Commonwealth agency explicitly charged by statute with the obligation and authority to regulate, protect, manage and preserve the fish and aquatic life of the Commonwealth and the waters entrusted to its care. Therefore, PFBC is a proper party litigant in this civil action because it has a legislatively conferred interest in this matter.”

Officials at Consol declined to discuss the decision, saying, “We have not yet had a chance to review the opinion, and therefore have no comment.”

A spokesman with the PFBC, however, said they were “very pleased with the decision and will continue to pursue the case to ensure that the Commonwealth of Pennsylvania is compensated for this enormous loss of aquatic life.”