Commonwealth v. Consol Energy, Inc., No. 13–0885.

CourtSupreme Court of West Virginia
Writing for the CourtPER CURIAM:
Citation758 S.E.2d 762,233 W.Va. 409
PartiesCOMMONWEALTH of Pennsylvania, PENNSYLVANIA FISH AND BOAT COMMISSION, Plaintiff Below, Petitioner v. CONSOL ENERGY, INC., Consolidation Coal Company, Defendants Below, Respondents.
Decision Date08 May 2014
Docket NumberNo. 13–0885.

233 W.Va. 409
758 S.E.2d 762

COMMONWEALTH of Pennsylvania, PENNSYLVANIA FISH AND BOAT COMMISSION, Plaintiff Below, Petitioner
v.
CONSOL ENERGY, INC., Consolidation Coal Company, Defendants Below, Respondents.

No. 13–0885.

Supreme Court of Appeals of
West Virginia.

Submitted April 8, 2014.
Decided May 8, 2014.


[758 S.E.2d 763]



Syllabus by the Court

1. “Appellate review of a circuit court's order granting a motion to dismiss a complaint is de novo.” Syl. Pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac–Buick, 194 W.Va. 770, 461 S.E.2d 516 (1995).

2. “Standing is comprised of three elements: First, the party attempting to establish standing must have suffered an ‘injury-in-fact’—an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent and not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct forming the basis of the lawsuit. Third, it must be likely that the injury will be redressed through a favorable decision of the court.” Syl. Pt. 5, Findley v. State Farm Mut. Auto. Ins. Co., 213 W.Va. 80, 576 S.E.2d 807 (2002).

3. “Although an express grant of powers to an administrative agency will be determined to include such other powers as are necessarily or reasonably incident to the powers granted, the agency's powers should not be extended by implication beyond what may be necessary for their just and reasonable execution.” Syl. Pt. 3, Walker v. W.Va. Ethics Com'n, 201 W.Va. 108, 492 S.E.2d 167 (1997).


Robert P. Fitzsimmons, Esq., Fitzsimmons Law Firm, Wheeling, WV, and Sharon Z. Hall, Esq., Zimmer Kunz PLLC, Pittsburgh, PA, for Petitioner.

Christopher B. Power, Esq., Mychal S. Schulz, Esq., Jennifer J. Hicks, Esq., Dinsmore & Shohl LLP, Charleston, WV, for Respondents.


PER CURIAM:

This action is before the Court upon the appeal of the Commonwealth of Pennsylvania,

[758 S.E.2d 764]

Pennsylvania Fish and Boat Commission (“PFBC”), from the July 12, 2013, order of the Circuit Court of Monongalia County dismissing its complaint against Consol Energy, Inc. and Consolidation Coal Company (collectively “Consol”). For the reasons that follow, this Court concludes PFBC has standing to file this civil action in West Virginia to seek recovery of damages for losses of fish and aquatic life allegedly caused by Consol's discharges of pollutants into a stream which flows between West Virginia and Pennsylvania. We reverse the order of the circuit court and remand this action for further proceedings.

I. FACTUAL AND PROCEDURAL HISTORY

PFBC is an independent administrative agency of the Commonwealth of Pennsylvania charged with protecting, preserving, and managing fish within the Commonwealth and overseeing jurisdictional responsibility for fishing and recreational boating. See30 Pa. Cons.Stat. §§ 321, 322 (1980). Consol operates long wall coal mining operations in West Virginia and Pennsylvania. As part of the mining operations, Consol applied for and received National Pollution Discharge Elimination System (“NPDES”) permits from the West Virginia Department of Environmental Protection (“WVDEP”), which regulated the point source discharges from Consol's mines into certain waterways including Dunkard Creek.

In September of 2009, a massive fish kill occurred in Dunkard Creek, a forty-five mile stream that runs across the Pennsylvania and West Virginia border. The United States Environmental Protection Agency (“EPA”) immediately joined other state and federal environmental agencies in the fish kill investigation, including the WVDEP, the Pennsylvania Department of Environmental Protection, and PFBC. Water samples taken during the investigation identified elevated levels of chloride and total dissolved solids (“TDS”) in Dunkard Creek. Chad Harsh, a lead environmental scientist of the EPA, stated:

the cause of the fish kill was the release of a toxin produced by Prymnesium parvumi, also referred to as golden algae. This species of algae thrive in saline conditions. Discharges of mine pool water into Dunkard Creek with elevated levels of chloride and TDS from Consol's Blacksville No. 2 and St. Leo mines contributed substantially to the conditions favorable for the golden algae to bloom.

The United States Department of Justice and the EPA brought a civil action against Consol in the United States District Court for the Northern District of West Virginia pursuant to Section 309(b) and (d) of the Federal Water Pollution Control Act (“Clean Water Act” or the “CWA”), 33 U.S.C. §§ 1319(b) and (d) (1990). They alleged Consol discharged pollutants into Dunkard Creek and other waterways in violation of the CWA and in violation of the conditions and limitations of the NPDES issued by West Virginia that created and/or contributed to the conditions favorable for the golden algae to thrive and bloom which ultimately led to the fish kill. That civil action was resolved by a consent decree. Without admitting liability, Consol agreed to pay a $5.5 million civil penalty. In addition to the civil penalty, the parties agreed Consol would spend over $200 million on a treatment facility to treat its mine water before it is discharged into waterways of the United States. A separate consent decree required Consol to pay WVDEP an additional $500,000 for loss of fish and aquatic life to West Virginia. The federal agencies did not pursue any relief for the damages that occurred in the waters of the Commonwealth of Pennsylvania.

By letter dated August 2, 2011, PFBC requested authorization from the Pennsylvania Attorney General to initiate a civil action against Consol for damages resulting from the 2009 fish kill. PFBC explained the federal preemption doctrine limits state law claims where interstate water pollution is caused by a point source located in another state. See Int'l Paper Co. v. Ouellette, 479 U.S. 481, 494, 107 S.Ct. 805, 93 L.Ed.2d 883 (1987) (finding the CWA does not completely preempt all state common law claims). PFBC stated: “the Commonwealth's claims must be based upon the law of the state where the point source is located, in this

[758 S.E.2d 765]

case, West Virginia.” PFBC estimated the damage for loss of aquatic life in the Commonwealth and loss of recreational opportunities for Pennsylvania anglers exceeded $1 million. On August 4, 2011, the Pennsylvania Attorney General delegated authority to PFBC to carry out this litigation.

PFBC filed suit in the Circuit Court of Monongalia County, West Virginia, on September 2, 2011, against Consol for damages allegedly caused by Consol's discharge of waste water into Dunkard Creek in West Virginia which flows into Pennsylvania. PFBC alleged that between May and November of 2009, Consol discharged significant amounts of chloride through their mining operations into Dunkard Creek near Greene County, Pennsylvania. PFBC alleged these levels exceeded daily maximum effluent limitations within the NPDES permits. During this same period, high levels of TDS were present in the receiving waters which led to and created the release of toxins from golden algae within Dunkard Creek that were fatal to fish and other aquatic wildlife. PFBC alleged the Commonwealth suffered significant losses of fish and aquatic life. PFBC estimated its recorded share of the 2009 fish kill at over forty-two thousand fish, comprised of forty species; over fifteen thousand freshwater mussels, comprised of fourteen species; and over six thousand mudpuppies.1

In the complaint, PFBC set forth West Virginia common law tort claims against Consol including nuisance (Count I), trespass (Count II), negligence and negligence per se (Counts III and IV). PFBC seeks various damages including recovery for the fish, freshwater mussels, and mudpuppies killed, the costs incurred in investigating, cleaning up and documenting the fish kill, any future costs associated with restoration of aquatic life in the Pennsylvania sections of Dunkard Creek, and punitive damages in addition to attorney's fees and costs.

Consol removed the civil action to the United States District Court for the Northern District of West Virginia, based upon 28 United States Code § 1331 (1980), federal jurisdiction, claiming all of PFBC's West Virginia common law claims were completely preempted by the CWA. PFBC filed a motion to remand to state court, which the federal court granted on September 4, 2012. Following briefing and oral argument, the federal court found PFBC's West Virginia common law claims were not completely preempted by the CWA, and, therefore, it lacked jurisdiction to adjudicate the action. The federal court found the CWA governs actions based upon interstate water pollution, but it specifically preserves the availability of state law causes of action brought by any “person” as defined by the Act,2 under the law of the source state. See Ouellette, 479 U.S. at 492, 107 S.Ct. 805. (“Although Congress intended to dominate the field of pollution regulation, the saving clause negates the inference that Congress ‘left no room’ for state causes of action.”).

Following remand to state court, Consol filed a motion to dismiss the complaint pursuant to Rule 12(b)(1) of the West Virginia Rules of Civil Procedure on the ground that the circuit court lacked subject matter jurisdiction. Consol argued: 1) PFBC's legal authority to allege claims for loss of aquatic life is limited to Pennsylvania causes of action for losses caused by violations of Pennsylvania law; and 2) the West Virginia Water Pollution Control Act (“WVWPCA”), West Virginia Code § 22–11–25 (2009), is the exclusive basis for seeking recovery for loss of fish or aquatic life in West Virginia courts and PFBC had no authority to bring an action under the WVWPCA.

By order entered July 12, 2013, the circuit court granted Consol's motion to dismiss. The circuit court found PFBC is “only authorized to bring civil suits for damages as a result of violations of Pennsylvania law, based on the language of 30...

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1 practice notes
  • Damron v. PrimeCare Med. of W.Va., 20-0862
    • United States
    • Supreme Court of West Virginia
    • June 9, 2022
    ...order granting a motion to dismiss a complaint is de novo."). See also Commonwealth, Pa. Fish & Boat Comm'n v. Consol Energy, Inc., 233 W.Va. 409, 413, 758 S.E.2d 762, 766 (2014) (citing Cleckley, Davis and Palmer, Litigation Handbook on West Virginia Rules of Civil Procedure § 12(b)(1) at ......
1 cases
  • Damron v. PrimeCare Med. of W.Va., 20-0862
    • United States
    • Supreme Court of West Virginia
    • June 9, 2022
    ...order granting a motion to dismiss a complaint is de novo."). See also Commonwealth, Pa. Fish & Boat Comm'n v. Consol Energy, Inc., 233 W.Va. 409, 413, 758 S.E.2d 762, 766 (2014) (citing Cleckley, Davis and Palmer, Litigation Handbook on West Virginia Rules of Civil Procedure § 12(b)(1) at ......

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