Fish Commission Reaches $2.5M Settlement Over Dunkard Creek Fish Kill

The Fish and Boat Commission Monday confirmed that it has reached a $2.5 million settlement with Murray Energy for civil damages resulting from a devastating 2009 pollution incident in which discharges from a coal mine entered Dunkard Creek in Greene County contributing to a massive fish kill spanning nearly 30 miles of stream in West Virginia and Pennsylvania.

Ohio-based 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 pollution incident.

“We’re pleased that we’ve reached a settlement and can close this chapter of the Dunkard Creek case,” said PFBC Executive Director John Arway. “Thanks to the efforts of our outside counsel, Sharon Z. Hall, Esquire of Zimmer Kunz, PLLC, and Robert P. Fitzsimmons, Esquire of Fitzsimmons Law Firm, four long years of litigation have come to an end. But it will take many more years to restore the creek to its prior condition. The devastation was astonishing. 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.”

The funds will be placed in a restricted revenue account within the Fish Fund to be utilized for the primary purpose of developing and implementing projects that benefit recreational fishing and boating and the aquatic resources of the Dunkard Creek watershed.

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

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

The Dunkard Creek main stem begins near the town of Brave, Greene County, Pa., and meanders approximately 37 miles between Pa. and W.Va. until its confluence with the Monongahela River near Dunkard Township, Greene County, Pa.

At the time of the incident, the mine was owned by Consol, which later sold it and several other mines to Murray.

In March 2011, Consol reached settlements 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, 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.

The PFBC was not included in the settlements and subsequently filed lawsuits in West Virginia on September 2, 2011, and in Pennsylvania on September 7, 2011, seeking monetary relief against Consol for damages to the natural resources of Pennsylvania and lost recreational opportunities for Pennsylvania anglers.

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