The court orders were filed in the Accord vs. Colane lawsuit Thursday morning in Logan Circuit Court.
Logan Circuit Judge Roger Perry granted summary judgment for the defendants on a motion to dismiss citing lack of enough evidence for a trial. The plaintiffs alleged that residents of the area had been exposed to harmful chemicals in the ground that had been placed there by the property owners and those toxins had caused several health problems and even death in some cases.
"The West Virginia Department of Health and Human Resources has concluded that the Chauncey site poses no apparent public health hazard and does not attempt to asses fault," Judge Perry wrote, noting that some of the evidence submitted by plaintiffs' council amounted to "rank speculation."
On June 25, 2009, defense counsel for Colane Corporation asked for a motion for summary judgment in the case filed by plaintiff Norma Accord and her counsel Kevin Thompson, Van Bunch and David Barney Jr. The court considered briefs, arguments and testimony from the plaintiffs and found a lack of evidence backing those claims and ruled in favor of Colane.
"There is no genuine issue of material fact in existence upon which a reasonable jury could render a verdict in plaintiff's favor and against Colane," the judge wrote in the orders.
Allegations of wrongdoing against Colane were based upon local residents’ suspicion and belief which is an insufficient basis upon which to deliver this matter to a jury for deliberation, the order stated.
The motion for summary judgment by Massey Energy and A.T. Massey was also granted due the plaintiff being unable to prove AT Massey took control of Coal and Coke's corporate structure and the general rule that when a company purchases the assets of another the buyer does not assume the liabilities of those assets.
There was no evidence presented which could prove Massey ever had any ownership interest in Coal and Coke before or after it changed it's name to Midland the order states.
The motion for summary judgment for Omar Mining Company was also granted. "There is no basis to hold Omar Mining liable as a direct polluter," the order states.
The motion to dismiss by Coal and Crane was dismissed for lack of evidence. Reportedly one defendant did settle in the case — the Logan Board of Education.
The judge’s ruling cites reports and tests showing a lack of evidence from the plaintiff and complainants to prove their allegations.
Perry said the dismissal did not mean that no wrong was done in the past, only that there was not enough solid evidence to proceed with a trial.
"The period of early resource development in the coalfields was a time without substantial government regulation or industry recordkeeping," Judge Perry wrote, adding that corporate defendants in the case, Massey Energy, A.T. Massey, and Cole and Crane Real Estate Trust, were like many natural resource development businesses in "having shown great skill in operating in a manner that isolates them from liability for the action of lessees and subsidiaries and in documenting the same."
On May 10, 2004, class action suit representatives Carlene Mowery, Edgar Franklin, Connie Keith and others initiated a civil lawsuit against Colane and the others who had owned the property over the years claiming that the school’s playground and ball field were contaminated as a result of residential and commercial waste dumping there prior to 1961. They alleged the claimants were exposed to toxic chemicals when they attended school or played at the ball field or playground, increasing their risk of contracting cancer due to alleged negligence on the part of the defendants in allowing dumping of hazardous materials on the property.
The complainants asked for damages in the form of a medical monitoring program for the class action members and monetary and punitive damages. Norma Accord was named as representatives in the lawsuit claiming former students and staff members of Omar Elementary School were exposed to toxic chemicals from a former mining operation to the detriment of their health. During the peak of the hysteria surrounding the allegations, the state health department said there were no higher rates of cancer in the Chauncey area than any other part of Logan County.
The court found that in December, 1954, West Virginia Coal and Coke conveyed to Tom Stark all of its general assets located in Logan County which included 26 tracts of land and leases and easements, deeded to Colane on May 10, 1955. The Colane Corporation was formed in January, 1955. In August, 1961, Colane deeded a 4,793 parcel of property to the Logan County Board of Education which built the Omar school in 1964. Colane conveyed an additional .223 acres to the BOE in August of 1967.
A municipal landfill existed on the property contained when Stark acquired the property from West Virginia Coal and Coke and continued to exist after Colane acquired the property. Garbage disposal ceased after the BOE obtained the property.
Discovery motions in the case began in September of 2004. During discovery hearings, plaintiffs’ council presented testimony from four witnesses about dumping activities at the site. The four were the only witnesses of fact announced during a May 21, 2009, hearing.
"The testimony failed to identify any specific product, chemical and or contaminant ever discarded upon the site in question, at any time in the past," the court finding said, adding that the allegations of wrongful conduct were based entirely upon the testimony of Edgar Franklin, Raymond Chafin, Carew Ferrell and Richard Lodge.
On March 8, 2004, the West Virginia Department of Health and Human Resources and the United States Agency for Toxic Substance and Disease Registry issued a report after an investigation about toxic waste allegedly dumped in Chafin hollow. The report concluded, "No official record documents such activity by any known individual or corporation."
During site investigations by DHHR, ATSDR and the EPA and DEP, the DEP discovered certain amounts of organic and inorganic materials, "some of which are naturally occurring in nature," contained within soil samples from the site. An another report filed on Feb. 3, 2005 stated "The Chauncey PCB site poses no apparent public health hazard for the present from the exposures likely to occur at this site to either children or adults."
The report concluded by saying no public health recommendations were needed.
During hearings, the plaintiff and counsel claimed the levels of organic and inorganic materials must have "degraded over time" and speculated that greater concentrations of harmful materials could have existed in the past.
However the court ruled that the plaintiff and her witnesses failed to produce evidence establishing that materials found at the site were harmful to humans. The order states that no core sampling was done and that the possible sources of contaminants included gasoline and diesel exhaust and remnants of surface flooding.
One of these days you people will learn that he is The Antichrist, but by then it will be too late.