PINEVILLE, W.Va. - With West Virginia's primary election just days away, a local jury is set to decide whether a coal company owned by Democratic gubernatorial front-runner Jim Justice contaminated the drinking water wells of more than a dozen Wyoming County families.
The three-woman, three-man jury is scheduled to begin deliberations Thursday morning after hearing legal instructions and closing statements on Wednesday that completed a more than three-week trial in a water pollution case against Justice-controlled companies Dynamic Energy Inc. and Mechel Bluestone Inc.
Fifteen families are seeking out-of-pocket costs and damages associated with the alleged contamination, as well as asking the jury to conclude that the mining companies damaged their wells - a finding that would allow them to seek a separate court order from Wyoming Circuit Judge Warren R. McGraw to force the companies to provide long-term treatment to clean up their drinking water.
"It's not illegal to mine coal," the residents' lead lawyer, Kevin Thompson, told jurors during his closing argument Wednesday morning. "What is illegal is not to try to protect [the water], to ignore your permit."
Billy Shelton, a lawyer for Dynamic Energy and Mechel Bluestone, told jurors later in the day that the residents had no case. He compared Thompson's effort to show mining had caused contamination of the drinking water to trying to eat a poorly made submarine sandwich.
"It looks good. It smells good," Shelton said. "But you can't bite into it. It's got no meat."
Shelton added, "We don't have to prove innocence. They have to prove that we caused these problems."
In the case, 15 families who live near Dynamic Energy's surface mining complex at Coal Mountain allege that the operation contaminated their wells to the point that the water is no longer safe to drink.
Trial in the case began on April 11 and has gone on amid little fanfare with the backdrop of the final weeks of West Virginia's primary election.
State and federal laws require mine operators to replace water supplies that become contaminated, diminished or damaged by mining. The laws set up a mandate for emergency water supplies, and then temporary supplies, prior to a requirement for long-term replacement.
The Coal Mountain residents had already won a court order for temporary water in December 2014, after McGraw heard evidence of high levels of arsenic, aluminum, iron, lead, manganese, sulfates and hydrogen sulfide gas in local wells. An expert for the residents had told the judge he thought "the damage likely is to be long-term in nature" and recommended establishing some alternative drinking water source.
The Coal River site includes a surface mine permit that currently covers about 1,400 acres, according to state records. The mine's production steadily increased starting in 2004, peaking at about 1.4 million tons with 127 employees in 2010, according to U.S. Mine Safety and Health Administration records.
Justice sold the operation, along with much of his coal holdings, to the Russian firm Mechel OAO in February 2009. Mechel OAO announced in late 2012 it was closing the mine, in response to slugging coal demand. But when Justice bought his coal holdings back from the Russian firm, he quickly reopened Coal Mountain. Justice reached a deal with the United Mine Workers for employees at the site, and the union has since endorsed Justice, with UMW President Cecil Roberts appearing in an ad calling Justice "one of the good coal operators."
On Wednesday, more than two dozen miners wearing UMW shirts filled several rows in the courtroom gallery. A local union hall is decorated with a large Justice campaign sign that proclaims, "Jim won't give up on coal."
Joe Carter, a UMW international board member from Southern West Virginia, said that local miners have attended every day of the trial because the company has told them the outcome of the trial could cost them their jobs.
"Every job is precious, and we're concerned about their jobs," Carter said during a break in Wednesday's court session. "These operations are marginal. We're between a rock and a hard place."
Justice, a billionaire who also owns The Greenbrier Resort, is considered the front-runner in a three-way race against former U.S. Attorney Booth Goodwin and state Senate Minority Leader Jeff Kessler for the Democratic nomination for governor. For months, Justice has been dogged by reports about his companies being late on tax payments, facing suits from vendors and failing to pay federal mine safety fines on time. The Justice campaign has tried to paint these problems Justice inherited when he bought his coal holdings back from the Russian firm in February 2015.
While the suits at issue in the trial were filed when the Russians controlled the Coal Mountain operation in 2014, citizen complaints to the state Department of Environmental Protection about water well problems date back to Justice's original ownership, according to lawyers in the case and to DEP records. After Justice repurchased the operation, citizens had to go back to court to try to enforce an earlier judge's order mandating temporary water be provided. And last year, the Jackson Kelly law firm sought to withdraw as counsel in the water pollution case, complaining at the time that the companies had "fallen behind" on their legal bills.
A spokesman for Justice's gubernatorial campaign did not respond to several requests in recent weeks for comment on the trial.
During closing arguments on Wednesday, Shelton told jurors that the residents' lawyers had simply "rounded up the usual suspects" of paid expert witnesses - he named Marshall University professor Scott Simonton and longtime federal government mining engineer Jack Spadaro - who he said are really little more than anti-mining activists who come up with evidence Thompson can use at trial.
"It's almost like a recipe or a script for a case," Shelton said. He said that the situation was "really kind of sad," complaining that one of the residents had contacted the Ohio Valley Environmental Coalition for help with concerns about local water supplies and the coalition then got residents "all worked up into a frenzy."
Shelton also tried to focus jurors on the testimony of a DEP inspector he said concluded that the mining did not cause any contamination of the local water supplies. Thompson responded that the DEP "protects the corporation," and that when the mine got into problems with the state, agency officials simply forced it to close down for a few days over the holidays.
Thompson, though, told jurors that it couldn't be a coincidence that so many neighbors noticed problems with their water all at the same time.
"They don't make their money by following the rules," Thompson said. "They've got enough money. They need to do the right thing."
Justice wasn't personally named as a defendant in the case, and he wasn't mentioned by either side during their closing arguments.
But one resident, Paulette Blankenship, said that Justice's spending on his gubernatorial campaign hasn't gone unnoticed to residents who want his company to pay to fix their water.
"We don't see the mine or hear the mine, but it still contaminated our water," she said.
Reach Ken Ward Jr. at kward@wvgazettemail.com, 304-348-1702 or follow @kenwardjr on Twitter.