This news story originally provided by The Courier-Journal

September 16, 2005

Coal-sludge spill lawsuit will go to trial Monday in E. Ky

By Roger Alford
Associated Press

INEZ, Ky. -- A trial is scheduled to begin Monday in a lawsuit filed by people whose property was covered in coal sludge five years ago in one of the South's worst ecological disasters.

The case involves the spill of an estimated 306 million gallons of the molasses-like substance that gushed in torrents from a mountaintop reservoir, smothering fish, blackening the landscape and cutting off drinking-water supplies for about 60 miles along the Kentucky-West Virginia border.

"It is the first jury trial involving the issue," said Ned Pillersdorf, a lawyer representing 12 people who filed suit against Martin County Coal and its parent company, Massey Energy of Richmond, Va.

"I'm expecting the trial to last a week or two."

The company has reached out-of-court settlements with some families who filed similar lawsuits.

Terms of those settlements were not disclosed.

In the pending lawsuit, residents living along Coldwater Creek are asking for unspecified compensation for property damage caused by the spill. They also had asked for punitive damages, but Circuit Judge Daniel Sparks ruled Tuesday that the plaintiffs can be compensated only for actual damages.

Pillersdorf had asked for punitive damages, claiming the company showed a reckless disregard for the residents. But Sparks said in his ruling that he found no such disregard.

The lawsuit claims the sludge spill deposited toxic chemicals on residential property, damaged underground water supplies and reduced the value of homes.

Jeff Woods, lead attorney for Martin County Coal, declined to comment on the case.

Charles Patrick, one of the plaintiffs, said that he and his neighbors are concerned that chemicals in the sludge may have harmed their health. He said several people along Coldwater Creek have been found to have cancer since the spill.

Another resident, Annette Evans, said in a deposition included in the case file that her dog became mired in the sludge outside her home. The yellow lab became ill and died two days later.

Martin County Coal contends that the sludge -- a mixture of water and waste products generated when the coal is washed in preparation for marketing -- is basically harmless, though its weight and thickness annihilated all aquatic life in Coldwater Creek and Wolf Creek.

The coal company spent about $40 million cleaning up the spill. In 2002 it agreed to pay nearly $3.5 million in penalties and damages to the state of Kentucky.

A drive through the affected areas reveals no visible signs of a spill. The stream banks are blanketed with vegetation. Small fish swim in the creeks.

Kevin Frey, a biologist with the Kentucky Department of Fish and Wildlife Resources, said fishermen on the Tug Fork of the Big Sandy River are finding bass, bluegill and several varieties of catfish plentiful.

That's in part due to a restocking program the state began after the spill, he said.