Class Action Approved for Pollution Case Against Massey Energy

Mingo County, West Virginia, judge will combine hundreds of water pollution lawsuits against a Massey Energy subsidiary into a class-action case, and settlements reached with many plaintiffs will help shave weeks or months off the trial, an attorney said.

Circuit Court Judge Michael Thornsbury stayed at the Williamson courthouse working on settlements with attorneys for both sides until almost midnight last Thursday as vans shuttled hundreds of plaintiffs to and from a nearby field house.

Some of the 751 plaintiffs had come from as far as California and Florida, and many were frustrated by the process. But plaintiffs’ attorney Kevin Thompson said the judge’s approach “revealed itself to be the only way it could have been done.”

“Judge Thornsbury sat there in those rooms and went back and forth for hours until every single person who wanted to see him saw him,” Thompson said Friday. “This process has cut weeks, if not months, off the length of this trial.”

The trial, which is set to begin May 12, could now last about three months. A pretrial hearing to hammer out a plan for the case is set for today.

Current and former residents of Rawl, Lick Creek, Sprigg and Merrimac say Rawl Sales & Processing destroyed their water supply by pumping 1.4 billion gallons of coal slurry, a byproduct from the washing of coal, into former underground mines between 1978 and 1987. That chemical soup of coal and chemicals then filtered into the aquifer their wells drew from, they say.

Rawl, a subsidiary of Virginia-based Massey, has denied the allegations and has defended the practice, saying mineral rights agreements dating to 1889 give the company “the full right to take and use all water found on the premises.”

The state Department of Environmental Protection has allowed coal slurry to be injected underground for decades, but it cannot say if the practice presents a risk to human health. A state study that looks at slurry’s chemical composition is to be presented to lawmakers next month. The study does not address health effects, which will be examined separately by state health officials.

The plaintiffs are now served by a public water system, but they believe chronic exposure to metals and chemicals has put them at higher risk of developing cancers and other diseases. Their claims include demands for a long-term medical monitoring program, which will be part of the class action.

Thompson refused Friday to say how many people settled their lawsuits Thursday, or for how much.

Nor would he comment on what amounts Massey and its insurers had offered his clients, saying settlement negotiations are typically understood to be confidential.

Massey spokesman Jeff Gillenwater did not immediately return a telephone call on Friday seeking comment.