This news story originally provided by The Lexington Herald-Leader

September 16, 2005

Property damage suit begins in Martin sludge spill

12 SEEK COMPENSATION FROM COAL COMPANY FOR '00 INCIDENT

By Roger Alford
ASSOCIATED PRESS

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

The case involves the spill on Oct. 11, 2000, 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 some 60 miles along the Kentucky-West Virginia border.

"It is the first jury trial involving the issue," said Ned Pillersdorf, an attorney 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 other 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. Sparks said in his ruling that he found no such disregard, which was required before he could allow a jury to consider punitive damages.

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 in the case, said 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 diagnosed with cancer since the spill.

Another resident of the Coldwater Creek community, 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 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 impacted areas reveals no visible signs that a spill occurred. 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.

Frey said the smaller Coldwater and Wolf creeks haven't recovered as well as the Tug Fork. However, he said they are comparable to other streams in the area based on the number of fish and other aquatic creatures living in them.

"There's going to be streams a lot better," Frey said, "but there are some streams a lot worse than those two."