Judges let slurry lawsuit against Massey stand
WHEELING, W.Va. (AP) -- A three-judge panel refused Thursday to dismiss a lawsuit accusing Massey Energy of poisoning hundreds of southern West Virginia wells with coal slurry, but it denied a request to sanction the coal operator for taking years to produce maps of its underground injection sites and other evidence.
After a contentious daylong hearing in Wheeling, the judges began clearing the way for the trial, set to begin Aug. 1. They also laid out rules for that trial, ordering participants to stop talking to the media, denying video coverage of the proceedings and warning against signs, buttons, T-shirts and anything else that attempts to turn the Ohio County Circuit Court into a protest venue.
More than 700 current and former residents of Rawl, Lick Creek, Sprigg and Merrimac claim that Massey and a subsidiary, Rawl Sales & Processing, contaminated their water supplies by pumping 1.4 billion gallons of toxic coal slurry into worked-out underground mines between 1978 and 1987.
Slurry is created when coal is washed to help it burn more cleanly. The residents say it seeped out of the old mine workings and into their aquifer, turning their well water varying shades of red, brown and black, and causing a variety of ailments.
A final attempt to avert the trial is set for next week, when two other judges who serve on the state's Mass Litigation Panel will try to mediate a settlement in Charleston. Those judges were not part of Thursday's proceedings and won't participate in the trial, expected to last several months.
Massey is now owned by Virginia-based Alpha Natural Resources.
Massey attorneys laid out 10 reasons it believes the case should be dismissed, arguing the plaintiffs used flawed methods to sample wells, and claiming those samples showed the water was safe to drink. They also argued mineral rights gave Massey the right to use the groundwater as it saw fit, and that the plaintiffs waited too long to sue.
"This isn't a case of taking the water away,'' responded plaintiffs' attorney Van Bunch. "There's plenty of water. The problem is, it's dangerous water.''
He said the residents didn't know their mountain was full of slurry, that Massey had put it there, or that it was the slurry that was making them sick. Nor is it clear exactly when Massey stopped pumping slurry into the ground, he said.
Although the company claims it stopped in 1987, the plaintiffs contend it could have gone on for nearly two decades longer. They accused Massey of lying to regulators about what it was doing and say newly discovered evidence bolsters their theory.
The plaintiffs asked for sanctions against Massey, claiming it withheld maps, financial records and other evidence they requested nearly seven years ago until last month, when a new court order compelled them to search a mine map vault in Kentucky.
Massey lawyer Dan Stickler, however, insists the documents found there aren't new. He claims they were listed on an index provided to the plaintiffs in 2007, and the plaintiffs simply failed to follow up.
"They can't benefit from their own negligence in failing to look at the documents we provided,'' Stickler said. "Every time they've requested something, we've bent over backward to provide it. ... We don't have anything to hide.''
In that vault, investigators found maps in unmarked storage bags. But plaintiffs' attorney Kevin Thompson said his team found even more documents in the attic Wednesday, and they plan to keep searching.
The maps contain information about the location of injection bore holes, how long they were used and other facts the plaintiffs consider critical to their case.
Bunch argues that when one underground void was full, Massey simply diverted the flow to another one until the slurry levels dropped -- apparently migrating from one coal seam down into another.
"They knew the slurry would escape because it did on several occasions,'' Bunch said, claiming the company failed to properly seal the mine voids to prevent that migration.
It was, he argued, "calculated, long-term methodology'' to dispose of Massey's waste, dupe regulators about the extent of its operations and endanger neighboring communities solely to save money.
Massey denied lying to regulators and continued to insist its Mingo County operations harmed no one.
For decades, coal companies in Appalachia have injected slurry into worked-out mines as a cheap alternative to dams and other systems that can safely store or treat it.
Although the plaintiffs are now mostly served by a public water system, they say chronic exposure to metals and chemicals in the slurry are to blame for birth defects, developmental disabilities and a range of other ailments.
The judges are set to hear another round of motions in the case Friday and could rule on whether the parent corporation can be held liable for the activities of the subsidiary, which Massey claims was an independent company.