$2.5 million settlement reached in Dunkard Creek fish kill

Hundreds of different types of fish, including a large number of muskies such as the ones in this photo, were found dead along Dunkard Creek in Pennsylvania and West Virginia in September 2009, after golden algae bloomed in the Monongalia County stream. A $2.5 million settlement was recently reached in the matter.

HARRISBURG — The Pennsylvania Fish and Boat Commission announced Monday that it has reached a $2.5 million settlement with an energy company over a massive fish kill that occurred in Dunkard Creek six years ago.

The agency had filed a lawsuit alleging discharges from a coal mine in September 2009 entered the creek and killed tens of thousands of fish and other aquatic life over nearly 30 miles of stream in West Virginia and Pennsylvania.

State officials on Monday called devastation from the Dunkard Creek spill “astonishing” and said 40 species of fish and 14 species of mussels were killed, including an endangered mussel.

The settlement was reached with Ohio-based Murray Energy Corp., which took over defense of the suit after it acquired the mine and others from Consol Energy, the commission said.

The Pennsylvania commission said high concentrations of chloride and total dissolved solids in the mine discharge “created brackish water conditions favorable for” the algae bloom.

The settlement money will be used for projects that benefit recreational fishing and boating and the aquatic resources of the Dunkard Creek watershed, and for restoration projects in other southwestern Pennsylvania watersheds, the commission said.

PFBC filed the lawsuit against Consol in September 2011 in Monongalia County, W.Va. court for civil damages resulting from what the commission called a “devastating” 2009 pollution incident in which discharges from coal mines in northern West Virginia that were then owned by Consol entered Dunkard Creek, contributing to the massive fish kill.

The mines in question were purchased by Murray Energy Corp. in December 2013, according to information found on Murray Energy Corp.’s website.

PFBC announced in early August that it had reached a tentative settlement in the lawsuit. Following the announcement, Gary Broadbent, spokesman for Murray Energy, said in an email sent to the Messenger on Aug. 5 that “Murray Energy Corporation 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 Company in December 2013.”

Broadbent also stated in the email that “the circumstances that led to the loss of aquatic life in Dunkard Creek, in 2009, 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.”

The lawsuit was seeking compensatory damages for the lost aquatic life and lost fishing opportunities for Pennsylvania anglers and punitive damages to deter future pollution.

“The devastation to Dunkard Creek was astonishing,” said PFBC Executive Director John Arway, in a written statement issued by the commission on the day the lawsuit was filed. “PFBC biologists estimated that over 42,000 fish, over 15,000 freshwater mussels and over 6,000 mudpuppies were killed. They also estimated that a large number of angler trips have been lost as a result of the fish kill.”

The commission, acting as the state’s “trustee of these aquatic natural resources,” was seeking compensation for the losses that occurred, according to the statement.

In early September 2009, the total fish and mussel kill occurred in the creek after high concentrations of chloride and total dissolved solids in the discharge from Consol’s Blacksville No. 2 mine in West Virginia created brackish water conditions favorable for a bloom of toxic golden algae, according to the statement.

The Dunkard Creek main stem begins near the town of Brave and meanders approximately 37 miles between Pennsylvania and West Virginia until its confluence with the Monongahela River near Dunkard Township.

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, according to the statement.

“This was a popular warm water fishery,” Arway said in the statement. “It will take decades to restore it to its prior condition.”

PFBC filed lawsuits in West Virginia and in Pennsylvania seeking monetary relief against Consol for damages to the natural resources of Pennsylvania and lost recreational opportunities for Pennsylvania anglers.

According to the statement, Consol reached settlements in March 2011 with the U.S. Department of Justice, the U.S. Environmental Protection Agency, and the West Virginia Department of Environmental Protection. The company agreed to pay a $5.5 million civil penalty to settle hundreds of federal Clean Water Act violations at six of its mines in West Virginia over the past four years, including the Blacksville No. 2 mine.

Consol also agreed to compensate West Virginia for the natural resources lost in the West Virginia portion of Dunkard Creek by paying $500,000 to the West Virginia Division of Natural Resources, according to the statement.

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