This article originally provided by Appalachian News-Express

July 31, 2006

Lawsuits muddy water project

BY LEIGH ANN WELLS
STAFF WRITER

WILLIAMSON, W.Va. - The residents of Lick Creek, Rawl, Merrimac and Sprigg have waited for years to have the ability to turn on any faucet in their homes and use the water that runs from it. Now, after more than a decade of attending Mingo County Commission meetings and making countless trips to the state capital in Charleston to share their plight with any politician who would listen, the residents of these areas are closer than ever to having potable public water at their disposal.

Miles of blue water lines are being laid along the twists and turns of Route 49. Project Manager Sheila Erwin said some residents are within a month or so of being able to tap into the new water supply. Erwin said it is her understanding that once the project's water tank is installed, residents can begin connecting to the new source. The entire $4.3 million project is expected to take approximately a year to complete, Erwin said.

While the project should bring relief to the 245 families who have not had potable water without the use of bottled water and 50,000 gallon water “buffaloes” supplied by the Mingo County Office of Emergency Management Services, it is shadowed by lawsuits filed in connection with the project. More than 80 families have joined forces to file a lawsuit against Massey Energy and its Rawl Sales and Processing subsidiary and Rawl Sales, in turn, has filed a defamation suit against Smith and Thompson, attorneys at law, the firm representing the families against the coal operation.

The first lawsuit

A 20-page complaint filed in Mingo County Circuit Court asks that Rawl Sales be made to provide temporary water replacement, medical monitoring, relief for personal injuries proximately caused by exposure to toxic substances, property damage and abatement of public nuisance.

The plaintiffs contend that Rawl Sales, having operated coal mining and processing facilities in and around the Rawl, W.Va. area for at least 40 years, contaminated the area's water shed through operation of a large slurry impoundment overlaying portions of the company's abandoned mine works at the head of Sprouse Creek and in the vicinity of the communities of Rawl, Lick Creek, Merrimac and Sprigg. The plaintiffs believe that during the construction of the slurry impoundment (circa 1980), crews from Rawl Sales drilled holes penetrating to underground mine works underlying the impoundment so that excess coal slurry would drain directly into the underground mine works, which included works Rawl Sales allegedly abandoned in a negligent manner.

The complaint further contends that this alleged negligent abandonment caused a series of underground coal seam fires that destabilized various strata overlaying the aquifers which supply water to the wells from which the residents of the four affected areas draw their water.

The plaintiffs claim that the coal company drilled and operated a series of injection wells into which slurry and other toxic materials were pumped and also conducted blasting operations in connection with “strip” mining operations in the affected areas, which also allegedly destabilized various strata overlaying the aquifers. Thus, they argue the destabilization, injection well operations and the operation of the Sprouse Creek slurry impoundment together created a completed exposure pathway from the Rawl Sales mining operations and its alleged toxic discharges to the plaintiffs' water supplies.

The complaint lists the presence of toxic substances in the water supplies as including, but not being limited to, arsenic, manganese, iron, mercury and selenium. It states that the concentrations of “known human carcinogens” and toxins in the drilled water supply have rendered the plaintiffs' property virtually worthless; caused cancers, maladies and injuries; makes necessary the need for residents to undergo periodic medical monitoring to screen for the health threats presented by said carcinogens; and that the plaintiffs have all contracted and are suffering from “dread diseases and maladies” including kidney stones, kidney failure, gall stones, kidney cancer, liver cancer, colitis, painful urination and chronic diarrhea, among others. The complaint alleges that people living in the affected areas need periodic diagnostic medical examinations different from what would be prescribed in the absence of exposure.

The plaintiffs are asking for a 14-point award in the case. Some of the specific points include compensation for damage to their property rights; damages for personal injury; court administered and supervised medical monitoring and testing; pre and post judgment interest on their award; punitive damages; abatement of any public nuisances found to exist on properties owned or contaminated by Massey or Rawl Sales and damages for alleged trespass, unjust enrichment and outrageous conduct.

The case is set for a jury trial on Nov. 6 in Mingo County Circuit Court.

The coal company responds

On April 21, Daniel L. Stickler, an attorney with the Charleston, W.Va. law firm of Jackson Kelly PLLC, filed a defamation suit against Smith & Thompson and its individual partners, Kevin Thompson and Martin R. Smith. The suit claims that a letter dated March 17 written to Mingo County Commission member John Mark Hubbard by Thompson contains defamatory statements that the groundwater in Rawl, Merrimac, Lick Creek and Sprigg is deadly, that Rawl Sales has knowingly contaminated this water without a permit and that its actions are killing the people of Rawl.

The complaint claims that the statements contained in the Hubbard letter are false and that Thompson acted with malice either through knowledge at the time of the communication that the defamatory statements were false or by acting with reckless and willful disregard for the truth.

The complaint further claims that because of the statements made in the letter, Rawl Sales has sustained injuries including damage to its reputation, good name and business.

Smith and Thompson have filed a countersuit, claiming that the Rawl Sales complaint fails to state a claim upon which relief may be granted against Smith and Thompson and that, among other things, the communication with Hubbard was privileged and protected under the laws of the state of West Virginia as well as being entitled to immunity. Smith and Thompson also claim that the letter was protected by the U.S. and West Virginia constitutions' guarantee of free speech and the right to petition government.

A hearing in the case is scheduled for 11: 30 a.m. Aug. 22 before Kanawha County Circuit Court Judge Jennifer Bailey-Walker.

Residents get water

On July 24, Mingo County Circuit Court Judge Michael Thornsbury granted a motion that Rawl Sales and Massey supply temporary replacement water supplies to the plaintiffs in Brown et al. Thornsbury ordered that water will not be delivered to anyone who no longer resides in the impacted area. The company must provide one case of bottled water per person in each household per week until further order of the court. The obligation to provide replacement water shall immediately terminate to any household upon their reception of public water.

Plaintiff Larry Brown was ordered by Thornsbury to coordinate distribution of the bottled water to the 80 families involved in the case and document the distribution to Thompson, who in turn is ordered to provide documentation to Rawl Sales.

Thornsbury also ruled against any waste or other issue that affects distribution of the replacement water supply, including redistribution, specifying that violators may be subject to sanctions and other discipline of the court. This supply will replace the bottled water that was being supplied by grant money arranged through state government and distributed by the city of Williamson. The grant money, which was approved in March, has been exhausted.

Thornsbury also stressed that the order directing Massey and Rawl Sales to temporarily supply water to the residents is in no way evidence for either side to use during the civil case.

Contaminated by slurry or nature?

Though residents are convinced that the water supply was contaminated by Massey's slurry and the plaintiffs have experts ready to testify to that fact, reports conducted by various agencies raise the question of who is actually responsible. Environmental groups who have monitored this and other various situations lean toward “Big Coal” as being responsible for the bad water in Lick Creek and the surrounding area as well as residential problems throughout West Virginia, going as far as telling their stories to national magazines such as National Geographic and Vanity Fair.

In a letter addressed to then-Mingo County Project Manager Virginia Lewis dated Oct. 16, 2003, Joseph A. Wyatt, acting director of the West Virginia Department of Health and Human Resources Public Health Sanitation Division, wrote that there was no indication of exposure to potentially hazardous chemicals from the Norfolk Southern Railroad railcar clean-out site or the Rawl Sales and Processing Strip Mine site and that the exposure pathways from both sites were not likely to be the source of chemical exposures that could cause adverse health effects for the past, present and future.

Wyatt also wrote that there are limited opportunities for exposure to chemicals from the old Williamson Landfill site. Though dermal and inhalation exposures are unlikely, he wrote that “the potential of water containing hazardous quantities of chemicals from this site is unlikely because of the potential for dilution of leachate in the Pond Creek Mine. The exposure pathways from this site were not likely to be a source of exposure to chemicals in hazardous amounts for the past, present and future.”

Wyatt went on to say that there are no indication that there have been harmful exposures to potentially hazardous chemicals from the Pond Creek Mine site or the Rawl Sales and Processing Strip Mine site and that there are no completed or potential exposure pathways from these two sites, therefore, the sites were categorized as “no public health hazard.”

Wyatt said that the groundwater in the area contains high levels of magnesium and sulfates at levels that “may be of concern for some persons.” However, he added, these chemicals could not be associated with any of the aforementioned sites.

A separate ground water investigation of the Lick Creek watershed performed in 1995 by Gregory E. Curry, a geologist with the West Virginia Department of Environmental Protection (WVDEP), found that in the areas in question, only three of the 38 wells tested were found to have been “adversely impacted” by mining in the area.

In his conclusions, Curry stated that there were three major limiting factors to the effectiveness of his study. First, there was no pre-mining ground water baseline data of the wells to compare with the data collected from his study. Secondly, the depths of the wells obtained from the residents as not confirmed in the field by physically measuring. Also, many residents did not know the depths of their wells at all. These depths, according to Curry, were not measured because of the WVDEP's concern with introducing a foreign object into a resident's well. Third, during the early 1980s, slurry was injected into the Pond Creek seam works through a borehole located at the head of Lick Creek. The Pond Creek seam, Curry wrote, dips to the northwest in this particular area, so the slurry was injected into an up-dip portion of the works in relation to the Lick Creek area. The elevation of the works at the injection area is approximately 640 feet above sea level. The nearest point at which these works are sealed down-dip of this injection is near the slope-entry portal. Thus, Curry concluded, to the southwest and west of the borehole, any portion of the Pond Creek seam works which are to the southeast of Lick Creek and below an elevation of 640 feet may contain slurry.

Curry continued that the volume of slurry injected is not known and there is no way of knowing, without an “extremely expensive” drilling program, exactly where this slurry is located in these works.

Curry wrote that there is no way to get a sample of either the injected slurry or the groundwater in the works surrounding it locally, although samples of mine discharges should reflect - at least to some degree - the water chemistry in these areas.

Curry added that a slurry spill into Lick Creek occurred June 9, 1984 during the injection process. Slurry flowed the entire length of the of the creek and later had to be dredged from the creek. He wrote that there is no baseline data of the wells in Lick Creek prior to the injections or the spill so “there is no way to absolutely determine what effects these events may have had on the quality of ground water in the Lick Creek watershed.”

Curry concluded that if the slurry injections or spill had widely affected the ground water quality in the Lick Creek watershed, it would be expected that more wells would exhibit elevated sulfate levels, when only three wells sampled for the study exhibited elevated sulfate levels.

Curry also found that fecal coliform was present in 61 percent of all wells tested, which he believed must have been coming from human sewage contamination. Surface water samples taken from Lick Creek also showed significant amount of fecal coliform, tests showed, and Curry wrote that this contamination “is a significant part of some of the well water quality problems in the Lick Creek area.”

Curry also wrote that it is possible that leachate from the former Williamson landfill had been reaching the aquifers which the residents' wells tap.

With the exception of the three wells, the final conclusion of Curry's 54-page report stated, “This writer can find no evidence of mining impact to any of the other wells in this study.”

Courtroom showdown

When plaintiffs in the Lick Creek water case go to court in November, they will follow a similar case filed in 2002 in which residents from Duncan Fork, another area of Mingo County, alleged that Massey damaged their water wells in much the same fashion as alleged in the Lick Creek area. In the case of Roger Ooten et al vs. Massey Coal Services et al, the inability to hammer out a settlement led to the parties involved telling their stories to a jury. In the end, the jury voted in favor of the plaintiffs, but did not award the punitive damages sought. The case is currently being appealed by attorneys for both sides and has not yet run the complete course.

Mingo County officials stand on the belief that although it has taken many years to do so, getting access to potable water for the residents of these areas is the most important issue. When the Lick Creek project is finished, officials will already have been working to bring public water to other areas of the county including Dingess, which at one time was listed as having a higher need than Lick Creek, and the Thacker area.

These same officials hold out hope that the Twin Branch Racing Complex project will become a reality, thus allowing easier access to public water for the residents of the Dingess area. Erwin said that public water is a priority with county officials and that every effort is being made to ensure that all residents have access to potable water.