Sylvester 'Dustbusters' Beat Up On Massey Energy

Massey Energy is going to need a whole bunch more ads. The shiny "good neighbor" image it is trying so desperately to cultivate just got tarnished again – this time not by sludge, but by black coal dust – much of it coming from mountaintop removal mines.

A jury found that Massey’s Elk Run coal processing facility failed to control coal dust coming off its property, thus creating a nuisance for its neighbors in the Boone County town of Sylvester. The jury said Elk Run negligently harmed residents and violated the WV Surface Mining Act by allowing dust to escape from its permit area.

Massey will have to pay nearly $473,000 in damages to the 150 or so folks who sued (but Massey will undoubtedly appeal).

Because Elk Run did break state mining laws, the company could also have to pay the residents’ attorneys’ fees, which amount to about $2 million for a lawsuit that was five years in the making. The jury’s verdict also allows the judge in the case, after another hearing, to decide if he wants to order Elk Run to implement dust control measures that actually work.

Dustbuster Pauline Canterberry in the Madison County Courthouse during the trial. Pauline and many of her dustbusting friends are active members of both Coal River Mountain Watch and OVEC.

For years, people in Sylvester have suffered through the constant coal dust and 24-hour noise coming from the giant Elk Run facility, which stockpiles, processes and ships coal – you guessed it, by lots of illegally-overloaded coal trucks. The fine black dust coats their homes, inside and out.

The dust got even worse when, in 1998, despite residents’ pleas, the WV Department of Environmental Protection granted a permit expansion. Elk Run took down part of a ridge in between the town and the plant, opening a new gateway for dust. Now, some homes – which were there first – are only 735 feet from the plant.

Before the expansion, the company promised in writing to make old problems better and to avoid new problems. But Elk Run moved slowly and did little. One dust control measure that was promised over two decades ago is still not in place! Sylvester residents made scores of complaints to the DEP, which finally ordered Elk Run to clean up part of its dirty act. The company appealed many of the DEP orders.

One thing it did finally do was build a giant nylon dome over its stockpile, but that didn’t stop the dust. (In typical Massey fashion, while the jury was deliberating its verdict the dust control dome was ripped and deflated and DEP cited Elk Run for a preventable accident.)

No, that's not a domed stadium gone astray in southern West Virginia - it's Massey Energy's Elk Run dome on a day when it was fully inflated and functioning, more-or-less. photo by Mary Miller

The coal in the stockpile is of course mainly at rest, and therefore dust isn’t jettisoned into the air on low-wind days. However, there are many places at Elk Run where coal is in motion – conveyor belts, the crushing plant, transfer points, loadouts and in uncovered coal trucks. When coal is moved, fine coal dust is easily launched into the air.

Fed up at having their town coal-dust coated, 150 of Sylvester’s almost 200 residents sued. They became known as the Sylvester Dustbusters.

The trial started in October, 2002. Nearly 70 residents testified about what it is like to have a Massey subsidiary as a neighbor, about how badly Elk Run affects their daily lives.

A real estate appraiser testified that the town’s property values were down $4 million collectively, due solely to the dust. A mining engineer discredited the company’s claims that there wasn’t affordable, effective dust control technology available.

In closing arguments heard on Feb. 5, the Dustbusters’ attorney, Brian Glasser, disputed much of the company’s testimony. He said Massey had been a "terrible neighbor," making his clients "miserable" by coating the town in coal dust and by nosily moving hundreds of millions of tons of coal, with hundreds of thousands of overweight coal trucks leaving the plant at all hours.

"Is it remotely believable that nobody at Elk Run has ever seen dust leave the property?" Glasser asked the jury. He mentioned several examples of permit violations, noting "violation of a permit that causes harm is flat-out negligence."

He said the people’s homes were their life savings, which had effectively been stolen by Elk Run due to the property devaluation. Glasser showed photos of other coal processing facilities that for years had been using "affordable, available technologies" to control dust. The technologies would cost the company about 4.5 cents per clean ton of coal.

Glasser said, "Elk Run’s lawyer promised you there was no coal company anywhere in the world that took more steps than Elk Run to control the dust. That is a total fabrication. That was complete hogwash."

In his closing arguments, Elk Run’s attorney, Al Emch, essentially called the 70-some residents who had testified liars. He said a lot of people in the town were related, perhaps hoping to invoke the "inbred" slur in jurors’ minds. He suggested that the town’s residents were pursuing the case for notoriety.

Many plaintiffs were in the courtroom for the closing arguments and there was quite a bit of coughing going on as Emch said dust isn’t unusual in coalfield communities and there were no health problems.

"Was it (the dust) intolerable or was it just some variation of normal, or close to normal, for a number of small southern West Virginia coal communities? One person’s intolerable nuisance can be another person’s welcome, or even embraced, inconvenience," Emch said. (That’s a new one. Maybe Massey can work it into its ad campaign. Massey Energy: An Inconvenience to Embrace.)

"This is something that we need to keep. It’s something that we need to encourage and it’s something that we need to somehow tolerate," Emch said of the plant.

Despite having to sit through Emch’s tripe, the Sylvester Dustbusters, some of whom are members of Coal River Mountain Watch and OVEC, are happy with the jury’s verdict.

All of them are eagerly waiting to see what dust control measures the judge will order at the next hearing.

Pauline Canterberry summed it up: "Our goal has never been money. We just didn’t want them to control our community."