# Callaghan v. Eastern Associated Coal Corp.

> West Virginia Supreme Court · April 3, 1986 · 177 W. Va. 257

URL: https://www.frixlaw.com/law-library/cases/8180939

## Case

- **Full name:** David C. CALLAGHAN, Director, West Virginia Department of Natural Resources v. EASTERN ASSOCIATED COAL CORP.
- **Court:** West Virginia Supreme Court
- **Decided:** April 3, 1986
- **Citations:** 177 W. Va. 257; 351 S.E.2d 605; 1986 W. Va. LEXIS 623
- **Precedential status:** Published
- **Opinion:** Concurrence by McGraw
- **Judges:** Brotherton, McGraw
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8180939

## Opinion text

McGRAW, Justice,
concurring:
With unanimous agreement by the majority in Syllabus Point 2 that Eastern is responsible for abating any “imminent danger to human life, property or environment ” associated with its slate dump dam on Low Gap Branch, I concur. The true measure of environmental quality is whether the native goldfinch can thrive in the air above the dump and the native brook trout 1 can thrive in the water below the dam without accumulating poisonous substances which would endanger human health upon their consumption. 2 I do not accept the proposition implicitly advanced by the majority that reclamation, i.e., returning the site to its original grade, elevation, and contour, is impractical. The environmental integrity of this area, however, as this Court unanimously agrees, must be secured and preserved for today and tomorrow.
. The utilization of animals for the protection of human health and safety is a time-honored tradition in the coal mining industry. George L. Kerr in his textbook, Elementary Coal Mining 178 (6th ed. 1921), noted that:
Detection of CO — Although this gas is inflammable, it cannot be detected by the flame of a lamp until there is about 12 per cent, present in the air, whereas a very small quantity is fatal to life. It has been suggested that as a very small percentage of this gas in the air affects small warm-blooded animals; such as a mouse or a bird, these should be utilised in the detection of this gas.* One part of CO to a hundred parts of air will soon kill a bird. If the bird becomes quite helpless and unable to stand, it would be dangerous for a man to continue, even for a very short time, to breathe such an atmosphere.
*At a colliery in Fifeshire, where, owing to the presence of this gas, due to a gob fire, seven men lost their lives, a canary was after-wards used successfully in rescue work for detecting the presence of the gas. At another colliery mice are regularly kept for the detection of this gas, and it has now become a common custom to use either canaries or mice for this purpose. It is now compulsory to keep one or other of these small animals at the colliery for use, if required, to detect carbon monoxide.
. It is widely accepted that fish can accumulate poisonous substances in their tissue which upon their consumption in the human food chain can lead to harmful consequences. See, e.g., Warning Issued About Kanawha River Fish, Charleston Daily Mail, March 4, 1986, at 7A, col. 4; Return Fish to Kanawha, Moore Says, Charleston Gazette, March 5, 1986, at 8B, col. 1.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8180939. Public record. Not legal advice.