Settlement Announced on Dunkard Creek Fish Kill

Washington PA Observer-Reporter
15 September 2015
By Bob Niedbala, Staff Writer

The Pennsylvania Fish and Boat Commission announced Monday it reached a $2.5 million settlement with Murray Energy Corp. for civil damages related to the September 2009 fish kill on Dunkard Creek.

The settlement results from a lawsuit the commission filed in 2011 against Consol Energy, claiming discharges from the company’s northern West Virginia mines contributed to the massive fish kill along nearly 30 miles of stream in West Virginia and Pennsylvania.

Liability in the case was assumed by Murray Energy in December 2013, when Murray purchased Consol’s northern West Virginia mines.

 “We’re pleased that we’ve reached a settlement and can close this chapter of the Dunkard Creek case,” commission Executive Director John Arway said in a news release.

In its lawsuit, the commission had estimated 42,997 fish, 15,382 mussels and 6,447 mudpuppy salamanders died in the kill.

 “The devastation was astonishing,” Arway said. “PFBC biologists collected 40 species of fish and 14 species of mussels that were killed by the incident. Among the dead mussels was the Pennsylvania endangered snuffbox mussel,” he said.

Four years of litigation have come to an end, Arway said. “But it will take many more years to restore the creek to its prior condition.”

Money from the settlement will be placed in a restricted account to be used for developing and implementing projects that benefit recreational fishing and boating and the aquatic resources of the Dunkard Creek watershed, the commission said.

Once restoration is complete, the commission may use remaining funds for restoration projects in other Southwestern Pennsylvania watersheds.

Murray agreed to pay the settlement in lieu of civil damages for the lost aquatic life and lost fishing opportunities for Pennsylvania anglers as a result of the incident.

The commission has maintained the fish kill was caused by toxins released by golden algae, which thrived in the high levels of chloride and total dissolved solids that were discharged from the company’s Blacksville No. 2 Mine.

 “Murray Energy Corp. was not involved in the events or circumstances in this case, in any way, as it assumed the defense of this action after its acquisition of Consolidation Coal Co. in December 2013,” Murray spokesman Gary Broadbent said.

Broadbent noted the fish kill was caused by a naturally occurring golden algae bloom. “While this bloom was unfortunate, Dunkard Creek is recovering naturally, at a very rapid rate, and aquatic life is now thriving,” he said.

West Virginia earlier settled with Consol on issues regarding the kill. In March 2011, Consol agreed to pay $500,000 to West Virginia for natural resources lost in the West Virginia portion of Dunkard Creek during the kill.

The company also reached settlements with the U.S. Department of Justice, U.S. Environmental Protection Agency and the West Virginia Department of Environmental Protection in regard to Clean Water Act violations.

Though it did not admit liability, Consol agreed to pay a $5.5 million civil penalty to settle Clean Water Act violations at six mines in West Virginia and spend $200 million to build a water treatment plant to treat discharged at four underground mines in northern West Virginia.

The commission was not included in the settlements and filed lawsuits in West Virginia and Pennsylvania in September 2011, seeking monetary relief against Consol for damages to natural resources and lost recreational opportunities for Pennsylvania anglers.