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Mediation in Rawl water pollution cases breaks down

CHARLESTON, W.Va. -- Mediation efforts seeking to settle more than 350 lawsuits filed on behalf of 769 people from Mingo County against Massey Energy Co. broke down at about 7 p.m. on Tuesday evening.

The state Supreme Court's Mass Litigation Panel hoped to settle the suits, which allege coal slurry run-offs from a Massey mining complex poisoned their groundwater and hundreds of wells near the town of Rawl, leading to serious health problems.

The failure of mediation efforts means the cases will begin going to trial on Aug. 1 at the Ohio County Circuit Court in Wheeling.

Bruce Stanley, a lawyer from the Pittsburgh law firm of ReedSmith represents many of the local residents.

"Despite the mediators' efforts, the parties could not settle their differences," Stanley said.

Shane Harvey, Massey's general counsel, confirmed the cases are heading to trial.

"We look forward to demonstrating that our mining activities had no impact on local wells. Our coal miners work hard and mine coal responsibly because they care about their neighbors. The out-of-state attorneys who say otherwise don't know our coal miners very well," Harvey stated.

Stanley said, "If Massey is so confident it can prove it didn't pollute all those wells, then why was it necessary to sue 32 insurance companies to try to find somebody to foot the bill?"

About 100 lawyers representing the 32 insurance companies being sued by Massey also attended the two-day mediation efforts at the Charleston Civic Center.

The insurance companies argue their policies with Massey Energy included "pollution exclusion" clauses, exempting them from making payments for damages caused by water pollution.

When mediation efforts began Monday morning, 667 plaintiffs, or their designated representatives, attended the meetings at the Civic Center.

"Our clients are extremely disappointed, but they are also extremely resolute," Stanley said. "We very much look forward to presenting our case to a West Virginia jury, confident that they will give us justice.

"Unfortunately, that's small consolation to those who become sicker with each passing day or for those who have already lost a loved one or who fear for their children's future."

The suits were filed between 2004 and 2009.

Stanley said an effort to file a single class action lawsuit, to represent all people alleging they suffered health problems from slurry pollution, was blocked by Mingo County Circuit Judge Michael Thornsbury.

Stanley refused to speculate about how much Massey may have to pay the plaintiffs if they win their lawsuits.

The plaintiffs -- who lived in Rawl, Lick Creek, Merrimac and Sprigg -- allege a coal slurry plant operated by Rawl Sales and Processing, a Massey subsidiary, polluted their well water, beginning in the mid-1980s.

The plaintiffs claim they suffered health problems such as chronic gastrointestinal disorders, skin cancers and major organ cancers.

Many allege they also suffered from developmental disorders from exposure to lead and other toxins when they were children.

The lawsuits claim Rawl Sales pumped more than 1.4 billion gallons of toxic slurry into old underground mine shafts, which ended up poisoning people's wells.

Three years ago, local residents began getting city water from the county seat of Williamson.

A somewhat similar case tried in Harrison County in 2007 ended up awarding about $300 million to 8,500 plaintiffs.

That class action suit -- Perrine vs. E.I. Du Point de Nemours and Co. -- alleged the plaintiffs were harmed by water pollution from a zinc smelting plant.

Even after the West Virginia Supreme Court lowered part of the verdict that provided "medical monitoring" for people who filed suits, total damages awarded were about $300 million.

In the Perrine case, plaintiffs claimed property damages from pollution and sought "medical monitoring" because of the risk of future medical problems.

Unlike the lawsuits filed against Rawl cases, the Perrine lawsuit made no personal injury or wrongful death claims.

The Rawl cases ask for compensatory payments for property damage, serious personal injuries and wrongful death, as well as medical monitoring.

"Several people from the Rawl area have already died," Stanley said. "And other people continue to get sicker and sicker."

Reach Paul J. Nyden at pjnyden@wvgazette.com or 304-348-5164.


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