This just in from Vicki Smith at The Associated Press:
MORGANTOWN, W.Va. (AP) — A Raleigh County judge will hold a hearing later this month on a medical monitoring lawsuit claiming hundreds of children were exposed to toxic coal dust from a Massey Energy Co. processing plant and silo next to Marsh Fork Elementary School.
Williamson attorney Kevin Thompson is suing Virginia-based Massey and three subsidiaries over alleged exposure from the silo that sits about 235 feet from the school near Sundial.
Judge Harry L. Kirkpatrick III granted class-action status to the case in December, but it fell into limbo because his ruling went to an incorrect address and was returned to the courthouse in Beckley. Thompson said he only learned of the ruling after filing a supplemental motion with the court in June, then calling to follow up.
The lawsuit, filed on behalf of Woodrow and Elva Dillon and their two children, accuses Massey and subsidiaries Goals Coal Co., AT Massey Coal Co. and Massey Coal Services Inc. of negligence and creating a public nuisance.
It demands unspecified punitive damages, as well as a court-administered medical monitoring program.
Massey has not yet filed a response with the court, and a company spokesman did not immediately comment.
Goals Coal has operated the silo since November 2003, and the plaintiffs argue more than 300 students and faculty could have been affected by dust that settled both inside and outside the school.
The judge wrote that although he “remains somewhat skeptical” that many people would participate in the lawsuit, “the court is willing to accept the representation and see what develops.”
However, Kirkpatrick said he could decertify the class if it turns out to be significantly smaller than claimed.
The lawsuit was originally filed by different attorneys in 2005, and the first attempt at class certification was denied in 2007.
The case argues long-term exposure puts the class members at greater risk of developing health problems.
Court filings show the plaintiffs plan to offer expert opinion from Maryland epidemiologist Shira Kramer, who says coal dust contains substances that have been associated with cancer, respiratory disease, poor lung function, chronic bronchitis, and renal, cardiovascular and autoimmune diseases.
The 70-year-old elementary school served as a media center during the Upper Big Branch mine disaster that killed 29 men in April, and it has been the subject of a fierce public battle for years.
Residents and anti-Massey activists have long complained about the danger to children and the rest of the Coal River valley from a dam that sits above the school and holds billions of gallons of coal slurry.
In June, the state School Building Authority said it would provide the remaining money needed to replace the school.
Massey and the county school board each have pledged $1.5 million for the project, and the Los Angeles-based Annenberg Foundation will donate $2.5 million. Coal River Mountain Watch, an environmental group, raised $10,400 for the project.
Construction is expected to begin next year.