Desperate

An Epic Battle for Clean Water and Justice in Appalachia

Kris Maher

• Publisher: Scribner
• Year: 2021
• ISBN:
  9781501187360
• Topic: Law
• Subtopic: Environmental Law
• Index: Law

Set in Appalachian coal country, this "superb" ( Pittsburgh Post-Gazette ) legal drama follows one determined lawyer as he faces a coal industry giant in a seven-year battle over clean drinking water for a West Virginia community. For two decades, the water in the taps and wells of Mingo County didn't look, smell, or taste right. Could the water be the root of the health problems—from kidney stones to cancer—in this Appalachian community? Environmental lawyer Kevin Thompson certainly thought so.For seven years, Thompson waged an epic legal battle against Massey Energy, West Virginia's most powerful coal company, helmed by CEO Don Blankenship. While Massey's lawyers worked out of a gray glass office tower in Charleston known as "the Death Star, " Thompson set up shop in a ramshackle hotel in the fading coal town of Williamson. Working with fellow lawyers and a crew of young activists, Thompson would eventually uncover the ruthless shortcuts that put the community's drinking water at risk.Retired coal miners, women whose families had lived in the area's coal camps for generations, a respected preacher and his brother, all put their trust in Thompson when they had nowhere else to turn. Desperate is a masterful work of investigative reporting about greed and denial, "both a case study in exploitation of the little guy and a playbook for confronting it" ( Kirkus Reviews ). Maher crafts a revealing portrait of a town besieged by hardship and heartbreak, and an inspiring account of one tenacious environmental lawyer's mission to expose the truth and demand justice.

PART I BLACK WATER FEBRUARY 2004–MAY 2005

CHAPTER 1

Kevin Thompson had been hunting for evidence all afternoon. A lone figure trekking through a rolling three-thousand-acre property in Mingo County, West Virginia, the forty-year-old attorney had climbed over barbed-wire fences and hiked up and down ridges on behalf of a client who was suing Arch Coal, one of the nation’s biggest coal companies, for contaminating his land. With his tan floppy hat, a backpack stuffed with topographic maps, and binoculars strung around his neck, Thompson looked more like a reality-TV explorer than a lawyer. For safety reasons, he was wearing steel-toe boots and carrying a hard hat. He knew he probably should have told the coal company that he would be out on his client’s property that day but he wanted to cover the ground without interference. A quarter of a mile away, beyond a rise, bulldozers and giant rock trucks were moving dirt on a flattened ridge, and coal that had been buried for millions of years lay black as velvet in the sun.

As he hiked up a valley fill, a steep slope of churned-up dirt, Thompson scanned the ground for signs that the workers hired by an Arch subsidiary had illegally dumped fuel and machinery there. On previous visits, Thompson had found tainted water seeping out of the ground. As an environmental engineer had recently told him, black water meant diesel was oozing to the surface, and red water came from rusting equipment. While hiking higher, he listened for the beeping of trucks on the other side of the ridge. He knew that as long as the miners were moving coal around, he didn’t have to worry about rocks raining down on him from another blast on the mountain.

Thompson’s client James Simpkins was a prominent local businessman who sold lumber and mining equipment. He supported mining on his remote spread and had even mined large tracts of it himself, slopes that were now covered with thick grasses where his prized Angus cattle grazed. But he believed the coal company had been negligent and contaminated his property with fuel and machinery. He’d hired Thompson a few months earlier after watching him win a sizable settlement against Arch for an adjacent landowner. Simpkins told people he admired the young man’s hustle. He liked Thompson, he said, even if he was a lawyer.

Thompson had a full head of light auburn hair, a resonant baritone voice, and an occasional stutter when too many thoughts crowded his brain. He also had a wife and daughter at home in New Orleans, where he rowed crew on the bayous to keep in shape. In the 1990s, he had built a successful litigation consulting business there and narrowly missed making a fortune when a chance to sell it fell through. But then an undeniable urge had led him to stake a claim as an environmental lawyer in southern West Virginia. After years of working as a consultant, he found he was drawn to the detective work of litigation as much as he was to arguing before a judge in a courtroom. And the coalfields were only a two-hour drive south from his hometown of Point Pleasant, close enough that he could stay there and keep an eye on his aging mother.

It was February 2004, and after working for a year and a half on two contamination lawsuits against Arch, Thompson was still getting his footing in the coalfields. He hadn’t found any new evidence on the valley fill that day, but before climbing down he stopped to take in the view. The series of ridges around Simpkins’s property was called Mystery Mountain. And that seemed appropriate enough—this part of the state was still largely a mystery to Thompson. Now the gray and ocher ridges of the Appalachian Plateau, still bare from winter, stretched into the blue distance like swells in a choppy sea. “It’s the most amazing view you’ve ever seen,” he often told people. “It’s crazy up there.”

On his way to his car, Thompson remembered he had an appointment with three potential clients: a preacher named Larry Brown, his brother Ernie Brown, and another man named B.I. Sammons. He had a scrap of paper with directions to a church nearly an hour away. He threw his gear into his Ford Explorer and realized he had just enough time to make it. He thought about stopping to clean up—his right hand, which he’d snagged on a fence, had dried blood on it and his pants were caked with dirt—but he decided showing up on time was more important. All he knew about the three men who wanted to meet him were their names and that they lived in a place called Rawl. It didn’t strike Thompson as a complicated matter. B.I. had simply said that their wells had gone bad. As he drove down Route 49 beside the Tug Fork, a winding tributary of the Big Sandy River on West Virginia’s rugged border with Kentucky, Thompson figured a coal company must somehow be involved.

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When Thompson turned onto Dick Williamson Branch Road, he found an old coal-mining community set in a hollow between low hills. The square houses with porches and newer double-wide homes were crowded close to a single lane of pavement, their tiny yards hemmed in by chain-link fences. Thompson slowed as a few barking dogs trotted into the road. At the top of the hollow, which was already in shadow, he came to a plain white church with a steeple. He noticed an ancient coal company house next to it that was weathered and gray. Then Thompson saw bright plastic toys in the yard and realized a family was living there.

Inside the Rawl Church of God in Jesus Name, more than fifty people filled the pews, and at first Thompson thought he had interrupted an evening service. The last of the sunlight was hitting imitation stained-glass windows: a white dove and a ray of yellow light against a scattering of abstract blue and green shapes. A few heads turned when Thompson entered, and then a tall man with narrow shoulders and large, silver-framed glasses approached him and asked if he was a lawyer.

“I’m not dressed like one, but I am,” Thompson said. The man introduced himself as Larry Brown, pastor of the church, and Thompson realized that all the people in the pews had been waiting for him. Larry Brown brought Thompson over to his brother Ernie, who had dark-brown hair and looked about twenty pounds heavier and ten years younger. Then Larry introduced Billy Sammons Jr., who went by B.I. and wore a plain white trucker hat over his white hair. Ernie Brown and B.I. seemed eager to talk, but Larry hushed them. “This is the fella we want to hear from,” he said.

Brown walked Thompson up the blue-carpeted aisle to an altar that looked more like a stage set for a high school band concert, with microphones, acoustic guitars, and a drum kit. A seven-foot-tall white cross, with a wooden crucifix at its center, hung on the wall. “Just tell the people a little about yourself,” Larry Brown said.

Thompson looked out on the room full of people. After spending the day wandering around with only his own thoughts, it took him a few seconds to adjust to the crowd. But once he started talking, the words came easily. He introduced himself and said he focused on cases involving contamination from mines and other sites, and then he cut the tension in the room by apologizing for his appearance.

“I’ve been tramping through bushes and climbing over and under fences, looking for evidence, and I’m embarrassed to be tracking mud through your church here,” Thompson said. His own slight drawl loosened the more he spoke. He explained that he was from Point Pleasant, that he’d gotten his undergraduate degree from Marshall University in Huntington and his law degree at Tulane University in New Orleans. He shared with them that he split his time between Louisiana and West Virginia and that he had sued oil and gas companies that contaminated property. Not shy about selling himself, he said that he had just won a big settlement against Arch Coal and that he’d been out that afternoon in the county for a second case against the company.

“I’m not against coal miners,” Thompson said, knowing he had only one chance to win over the crowd, many of whom looked as though they had come directly from mining or construction jobs. “I love coal miners.” He also knew that in West Virginia, making such a statement could sound like checking a box. But, he went on to say, he believed that coal companies had devastated the state for too long. With his voice rising, he said coal barons, most of whom had never set foot in the state, had oppressed West Virginia for more than a hundred years and left miners and their families with a poisoned land and water. A few voices mumbled in agreement. Others seemed less receptive to that message, but he couldn’t care about that now.

Standing before the people, he saw faces that looked weary and distrustful, others that looked angry, and a few that were already staring up at him with hope. He leaned in and said he wanted to find out more about people’s water. “Can someone tell me about your wells and the water in your homes?”

In the back of the church, Larry Brown leaned toward his wife, Brenda, and said, “We’re going to hire this guy.” Over the past few weeks, he and his brother and B.I. had invited other lawyers, including one from Washington and another from New York, to Rawl. They had shown up wearing expensive suits and promised they could win a lawsuit but said the people would have to get themselves organized first. So far, Thompson hadn’t promised anything. But he spoke with more passion than the other lawyers. And he already seemed to know more about coal and West Virginia than the other attorneys had. Brown saw Thompson’s muddy boots and the dried blood on his hand and believed the young lawyer wasn’t afraid to get dirty looking for evidence. It was exactly the kind of commitment the people in Rawl needed.

Thompson later recalled that Brown asked how many people in the crowd had had gallbladder and kidney problems and that a smattering of hands went into the air each time. He asked how many people had had rashes. More hands went up. Many people hadn’t discussed their health problems with their neighbors. But now people began speaking over each other, expressing their worries and asking Thompson questions all at once. Four or five people had brought jars of gray and rusty-looking water they’d filled up at their taps.

“Massey’s been poisoning us,” Larry’s brother Ernie said.

Thompson had of course heard of Massey Energy—it was the biggest coal company in West Virginia. But he didn’t know much about its operations. He learned that day that Massey’s Rawl Sales & Processing subsidiary had a preparation plant that cleaned coal on the other side of the ridge above Rawl. Some people thought the company’s impoundment—a man-made reservoir created to store coal slurry, the liquid waste from the plant—had been leaking deep into the ground.

Residents were attributing a wide range of problems to their water. Thompson heard stories of broken water heaters, corroding pipes, and filter systems that burned out in a month. Larry Brown told Thompson that he had gotten boils on his legs that he believed were caused by bathing in the water. He said his wife had gotten them too, and that his daughter had had two miscarriages.

“Good Lord, I’m sorry to hear that,” Thompson replied.

After the meeting wound down, Larry Brown explained that some of his neighbors had been wary of attending. People along Route 49—not just in Rawl, but in the three neighboring communities of Lick Creek, Merrimac, and Sprigg—had been living with bad water for years. Some were afraid they or a family member could lose their job at Rawl Sales or another coal company if they publicly criticized Massey. Whenever Brown organized a community meeting, he said, he feared that some attendees were there just to listen in and report back to Massey. As Thompson stood listening, several people mentioned Massey’s CEO, Don Blankenship, with a mixture of defiance and fear, and said he was to blame, without offering a clear reason. Working on his cases against Arch Coal, Thompson had heard Blankenship’s name come up. But he could tell that it carried a different weight in Rawl.

Thompson told Larry, Ernie, and B.I. that he would discuss what he’d seen and heard with some lawyers he’d been partnering with, but that it looked like the people in the community might very well have a strong case if the water showed contamination from mining. He knew he needed a more detailed picture of people’s health conditions, and after the church meeting he gave Ernie and B.I. a health survey and asked them to get as many filled out as they could.

When he left, Thompson thought about one thing Larry Brown had said about Massey.

“People are scared of the company,” Larry had said. “We have no confidence in them, because of the things that’s happened in the past. We been done like that in the past.” But he’d said the time had come for the people to stand up.

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Thompson had been staying at his mother’s house in Point Pleasant, and when he got back that night, he was still buzzing. He called his wife, Kathleen, at home in New Orleans and told her about the jars of gray and rust-colored water, the long list of health problems, the concerned faces in the crowd. He was moved, but it was hard to put his exact feeling into words. He had felt the anger in the room and that the people were ready to fight. All they needed was an advocate.

“There could be a couple hundred or more plaintiffs,” Thompson said. He realized he could threaten a class action. Based on his recent experience with Arch Coal, he believed Massey was likely responsible for the water contamination in these four communities and that he could force the company to settle within six months to a year.

“We’re going to make twenty million dollars,” he said, guessing at what he thought Massey would have to pay in a settlement.

Kathleen, who had managed litigation for an insurance company before marrying Thompson, told him that the case sounded compelling—and horrifying. She was more right than she knew.

In his excitement, Thompson had no inkling that over the next seven years the case would come to dominate his life, eventually threatening his marriage, his finances, and his safety. That by taking it on, he would become deeply involved in the lives of hundreds of people in Rawl and its neighboring communities along Route 49. Or that the conflict would pit him against one of the nation’s most powerful coal companies and its CEO, just as the industry was about to go through a series of historic shocks, plunging Thompson into one of the most important environmental issues of the day: the struggle of ordinary citizens to hold companies and elected officials accountable for failing to protect their drinking water.

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Over the next few weeks, Thompson kept in contact with Larry, Ernie, and B.I., but a visit to Ernie and Carmelita Brown’s house made the strongest impression on him. The couple lived alongside Route 49, just west of Rawl, in the middle of a tight curve in the road. It was a picturesque spot. Across the two-lane state road, a grove of trees in a hollow sloped down toward the Tug Fork. Thick woods surrounded the Browns’ property. To the right, set back in the trees and partly camouflaged by overgrowth, there was an abandoned wooden house that was easy to miss from the road, another sign of the area’s coal-mining history hidden in plain sight. When Thompson parked at the Browns’ for the first time, their own house, with its reddish-brown beams, reminded him of a Swiss chalet. A set of wooden stairs led to a side door that opened onto the kitchen on the second floor, where Thompson was hit with a smell of rotten eggs that choked his throat and made his eyes water.

The odor was so severe that Thompson couldn’t believe that the Browns were moving around the place without seeming to notice it themselves. But as they explained, they had stopped being able to smell it.

Ernie and Carmelita walked Thompson down a hallway to their bathroom, where Carmelita had first seen the water turn black. That was all the way back in about 1983, she said. Some twenty years later, neither could remember the exact date. But Carmelita vividly recalled turning the faucet on to draw a bath for herself one evening and watching with alarm as dark-gray water with fine black particles in it filled the tub. Not knowing what to do, she had called Ernie into the room and they stood together, waiting to see if the water would run clear again. For months, the water did seem to return to normal. But then it turned gray again, and the episodes became more frequent over time.

Ernie brought up the big impoundment—the one Thompson had heard about at the church meeting—on the other side of the mountain. Thompson knew little about slurry or what went into cleaning coal at a preparation plant. But he listened to Ernie’s theories about the potential link between the Rawl Sales operation and the family’s well.

A former Massey miner, Ernie said that at first he had thought the impoundment was too far away to affect their well, which was 220 feet deep and partly cased in cement. But he came to suspect that slurry was escaping from the impoundment and making its way under their house. Ernie also believed that blasting by a contractor for Rawl Sales in the early 1980s had cracked the earth under the impoundment. At the time, the blasts had felt like small earthquakes, knocking pictures from walls and cracking windows in their neighbors’ homes. The Browns had sensed the ground move beneath their own house. “We figured it was the coal company doing something somewhere, up to no good,” Ernie said.

Some twenty years after Carmelita first noticed the water changing, their bathtub and sink and toilet bowl were all stained black. Steam from the shower had given the pink walls a grayish tint. Ernie hauled out old plumbing fixtures he’d had to replace when the water had eaten through them. He said he had even been forced to replace electrical outlets, after they had been corroded by the gas permeating the house. Carmelita said she had discovered that if she left a new penny on a table in the washroom, the top side would turn black after a few days while the unexposed side remained shiny. “If it’s doing all this, what do you think it’s doing to us?” Ernie asked.

Ernie wore his dark-brown hair neatly parted to the side and kept his mustache carefully trimmed. His toughness and punctiliousness both came through when he spoke. He had grown up in Lick Creek, less than a mile away from Rawl, and his mining career had ended in 1989, when he’d badly injured his back while operating a cutting machine for a contractor in a Massey mine. Since then, he had been forced to live off disability insurance. Years of frustration over their water had left him jaded when it came to Massey. Now he sat at the kitchen table and read his Bible every evening, looking for passages to speak on at the Sprigg Freewill Baptist Church, where he and Carmelita were active members. Like his brother Larry, he had a deep faith that he had begun ...