04/30/2009

By VICKI SMITH  / Associated Press

A Mingo County judge used assembly line efficiency Thursday to shuttle hundreds of plaintiffs through his courtroom in an attempt to resolve coal slurry water pollution lawsuits against a Massey Energy subsidiary.

Judge Michael Thornsbury divided the plaintiffs into groups of 100 by alphabetical order and told them each would have just minutes to decide whether to accept or reject individual offers to settle their cases against Rawl Sales and Processing.

"When you come in, it's not going to be a time to hesitate," he told the packed courtroom. The settlement talks could involve up to 700 separate cases involving current and former Mingo County residents.

By midmorning, fewer than six people had been called.

A trial is expected to begin May 12 on claims that Rawl Sales contaminated local water wells after dumping 1.4 billion gallons of coal slurry into former underground mines between 1978 and 1987. The company 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."

Thornsbury warned the plaintiffs that based on his experience, "very few have faired better at trial then they did at the settlement conference."

Larry Brown Jr. said he was offended by Thornsbury's attempt at legal efficiency, saying he felt like an animal being lined up and pushed through the door.

The 28-year-old Rawl resident planned to reject the $37,000 to $60,000 he was offered because he didn't think it was fair compensation for decades worth of exposure.

"I had to brush my teeth in it, take a shower in it and eat food that was cooked in it for 25 years," he said.

The area is now served by a water system, but before the system was installed, Rawl Sales was required to provide bottled water to residents.

Brown's father and mother, Larry and Brenda, organized the water distribution at their church.

Although her son wasn't happy with the settlement offer, 52-year-old Brenda Brown said she was ready to take any offer.

"I'm through with it," she said before being called into a room to meet with Thornsbury, her lawyer and lawyers representing Rawl Sales and its insurance company. "We helped organize this and keep this going, but it's torment. That's exactly what it is."

In their lawsuits, residents claim they have suffered health problems from drinking, bathing and cooking with coal slurry laced water.

Coal slurry is a byproduct formed by washing coal. Residents claim the slurry Rawl Sales injected into 1,000 acres of worked-out underground mines leaked into the aquifer that feeds their wells. And the company did it, they argue, to save the $55,000 it would have cost to gather enough rock and earth to build a surface impoundment.

Plaintiffs also argue that Rawl Sales could have used safer disposal methods such as a "dry filter cake" process that squeezes the water out, then compresses the solids for stacking and burying.

Instead, they say the company drilled 40 holes more than the three it was allowed, pumping water out to relieve pressure and make room for more waste. Eventually, the injection site came within feet of homes, the lawsuit says, and tests now show "toxic coal slurry ripples and bubbles through the system in varying degrees, from highly toxic to simply toxic."

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. That will be addressed in a separate study.

Betty Ayers made the trip from her home in Asheboro, N.C., to attend Thursday's hearing. She grew up in the area and blames her health problems on the water she drank growing up.

She was hoping to obtain a settlement worth $141,250 to $276,000. She plans to reject the $11,000 offer.

"I wanted that money," the 44-year-old woman said. "I didn't want to go to trial, but if I have to I will."

For 41-year-old truck driver James Anderson going to trial means he has an opportunity "to take something from them because they have taken something from me." He had a gall bladder attack at 17, suffers from heart problems and now suffers from memory and concentration issues.

Anderson was the first plaintiff to be called and he rejected a $30,000 offer. He had been hoping for $210,000.

Anderson said he believes the coal company is again trying to take advantage of the residents.

"We're just a bunch of dumb hillbillies. That's what they think."