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Massey caused 'living hell,' resident testifies Mingo

Published: Wednesday, August 11, 2004
Page: P1C
Byline: Ken Ward Jr. WILLIAMSON - In 1989, Betty Jackson and her husband, Oliver, moved to Duncan Fork. With four kids, the couple needed a bigger house.

"We wanted a secluded, quiet place, and we found it in Duncan Fork," Jackson recalled.

Then, Massey Energy found the coal buried beneath their community.

After the Virginia-based coal giant ran mining machines under Duncan Fork in 2000, Jackson and her neighbors watched their wells dry up.

For more than a year, Jackson fought with Massey's Delbarton Mining to get replacement water. Often, the replacement water tanks ran dry.

Other times, the pipes from them froze.

Company officials put the huge tanks on the sidewalk around the family's swimming pool, making the pool impossible to use. Frequently, the water tanks had "stuff floating in them." If you used the water to boil pasta, "there would be a slimy film over the water." In mid-2002, the Jacksons and about 130 other families sued Massey.

Now, they're having their day in court.

"Every day there was something," Jackson told a Mingo County jury Tuesday morning.

"Either I didn't have water, I was waiting for water or I had frozen water," she said. "It was just a living hell." Jackson led off for a long list of Duncan Fork residents expected to tell their stories as their lawsuit against Massey Energy enters a new phase.

In late May, a six-person jury found that Massey violated state mining laws when it damaged dozens of residential wells. The jury also found that Massey was negligent, and failed to take proper steps to minimize that damage.

That was the liability phase of the case, in which jurors decided if Massey dewatered residents' wells and if the company was negligent in doing so.

On Tuesday, Mingo Circuit Judge Michael Thornsbury began the damages phase.

Jurors will decide how much money Massey should pay to compensate the residents and punish the company. The judge said he hopes to finish this phase by the end of August or, at the latest, the first week of September.

"You're going to hear stories about people running out of water," said Charleston lawyer Scott Segal, who represents some of the residents.

"You're going to hear about people who didn't have water for Thanksgiving dinner," Segal told jurors in a brief opening statement.

"There are 200 different stories about what happened to these people because of what these companies did." Stephen LaCagnin, a lawyer for Massey, told jurors that the company moved quickly to provide residents with replacement water.

Company officials first provided residents with huge plastic tanks known in the coalfields as "water buffalos." Later, residents were hooked up to city water.

LaCagnin blamed the lawsuit on a handful of disgruntled residents who he said "created an atmosphere of hysteria." "By and large, the vast majority of these plaintiffs are good and decent people," LaCagnin said. "But there are a few people who took advantage of the situation." Starting in late 2000, Massey had started to mine under communities north of Williamson along Duncan Fork, Ooten Branch and Riffe Branch.

Within a month, the state Department of Environmental Protection received its first reports from local residents that wells were going dry.

When underground mining removes coal, the mine roof above the coal reserves can fall. Rocks and earth above it sink into the void where the coal used to be. The shifting of earth, called subsidence, can damage foundations and walls of buildings.

If land beneath groundwater or streams subsides, water can flow into the empty spaces, where the coal used to be, out of reach of residential wells.

Under a 1992 amendment to the federal strip-mining law, coal companies are required to replace water supplies that underground mining ruins.

State and federal mining laws also allow residents whose wells are damaged by mining to sue coal operators for monetary damages.

Earlier in the Mingo County case, Massey lawyers urged jurors to put a stop to such suits.

"You can take it back to the jury room and decide that a coal company should not be subjected to a lawsuit and be drug into court every time they take a well," company lawyer Larry Blaylock said in closing his defense in the first phase of trial.

Blaylock warned that a verdict against Massey would be a "bad omen .. for the coal industry and for the people who live in communities that rely upon the coal industry for their livelihood or merely for their ability to be employed in an area they love and live in." On Monday, Massey told the U.S. Securities and Exchange Commission that it did not expect the Mingo case to have a "material impact" on its financial condition.

In the case, residents allege not only that Massey dewatered their original wells, they also say the company did not provide proper replacement supplies, as required by federal and state law.

East Kentucky Water Co., which was hired by Massey to provide replacement water, was also sued by the residents. Massey filed a counterclaim against Compliance Monitoring Laboratories, which it hired to test the replacement water. Lawyers for East Kentucky and Compliance Monitoring said their clients had done nothing wrong.

Segal told jurors that residents had suffered diarrhea, vomiting and skin rashes after drinking or using the replacement water.

The water was not only discolored, but also contaminated, Segal said.

"The people who were delivering the water didn't know how to do it right," Segal said.

To contact staff writer Ken Ward Jr., use e-mail or call 348-1702.

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