Ashton Marra Published

W.Va. Supreme Court: Pa. Commission Can Sue Over Dunkard Creek Fish Kill


The West Virginia Supreme Court has reversed a lower court’s decision and will now allow a Pennsylvania agency to sue a mining company after the 2009 fish kill at Dunkard Creek.

In a written opinion Thursday, justices reversed a ruling by Monongalia County Circuit Judge Russell Clawges. He ruled last year the Pennsylvania Fish and Boat Commission could not sue Consol Energy in a West Virginia court after the Dunkard Creek fish kill.

The kill occurred in 2009 after elevated levels of chloride and total dissolved solids were detected in the creek.

The waterway, which starts in Mon County and crosses the Pennsylvania border, was contaminated in West Virginia. The flow across the state line resulted in the killing of more than 50,000 fish and other aquatic species in Pennsylvania.

The neighboring state did not receive any compensation for the loss of aquatic life after a settlement between Consol and federal and state agencies was reached in 2011.

The PFBC’s suit for $1 million in damages must now be heard in circuit court following the Supreme Court’s ruling.