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Lawsuit challenges coal truck weight limits

by Nora Edinger

REGIONAL EDITOR

CLARKSBURG -- A locally filed lawsuit may be part of an evolving proceeding that could eventually test West Virginia Senate Bill 583. That's the 2003 law that authorized increased coal truck weights on certain roadways.

The local lawsuit pits Harrison County resident Barry Hurst against Patriot Mining Company Inc., a subsidiary of Anker Coal Group of Morgantown. Hurst alleges coal trucks serving the Sycamore Road operation are routinely loaded to illegally high weights, interfering with his enjoyment of his property and endangering his life as he enters and exits his land.

Filed in Harrison County Circuit Court and recently moved into federal court because Patriot is in a federal bankruptcy proceeding, the Hurst complaint joins three others filed in Kanawha, Wyoming and Webster counties' circuit courts.

Each was filed by The Calwell Practice PLLC of Charleston. The firm is seeking class-action status, a process that could ultimately mushroom into a contest between resident property owners on nearly any coal road in the state and multiple mining companies or contractors.

If that happens -- and a judge rules in plaintiffs' favor -- that could provide a financial challenge to the increased truck weights allowed by SB 583.

Mixed motives?

While a coal industry spokesman believes the lawsuits are all about money, one of four Calwell attorneys who filed the Harrison case said they're about citizens' rights to enjoy their property.

If that issue happens to challenge a state law he considers questionable, all the better.

"We didn't think that this particular law was that wise," said attorney Tom White. "In fact, it was unwise."

He noted the other three lawsuits -- none of which have proceeded beyond the discovery stage -- more directly involve SB 583. They were all filed inside the 15-county southern region whose roadways' weight capacity can now be increased from 80,000 pounds to 120,000 pounds.

White is unsure if the three southern lawsuits actually involve roads that will have the higher weight capacities, however, because the list is not finalized.

Norman Roush, deputy commissioner for the state Division of Highways, said the final list may not be available until a Jan. 1 deadline. That is also the case for a list of roads elsewhere in the state that the law now allows to be upgraded from lower capacities to the 80,000-pound limit for the state's 40 other counties.

As the Calwell cases proceed, White said the firm will try to identify other individuals who may be eligible for inclusion in a class-action case. They are also researching whether the class-action method is the best to pursue.

The attorneys are also studying whether nuisance laws are a valid point of attack and whether coal companies or their trucking contractors are the appropriate defendants.

Bill Raney, president of the West Virginia Coal Association, was aware of the lawsuits although he had not personally reviewed any of them as of late last week.

"It's detrimental. It's typical of the kind of lawsuits that are filed in West Virginia," Raney said.

He believes a class-action situation would be profitable for the attorneys but would be less beneficial to coal road residents than allowing them and mining companies to settle their differences individually, preferably outside of court.

Raney said all the mining companies employ their own attorneys, but noted the association may offer legal assistance to its members should that be necessary.

"I would suppose that we'll look at this ... as a group."

In the meantime

While the cases play out at what White predicts will be a "glacial pace," lawmakers and state workers will be watching.

Del. Mike Caputo, D-Marion, is particularly interested. He fought for strict enforcement of the former 80,000-pound cap and opposed any increases in the limit. His efforts sparked controversy that resulted in death threats against him and angry coal truckers circling the Capitol in their vehicles.

"The only thing that surprises me is that it took this long to do it," Caputo said of taking the issue into court in this way. "Does this have potential to change the law or tweak the law? Sure it does."

On the administration side, both DOH and the state Public Service Commission are preparing to administer a fully operational SB 583.

DOH's Roush said that agency is extensively looking at roadways in the 15-county region to see which can be upgraded to 120,000 pounds of capacity. Those upgrades and increasing roadways elsewhere to 80,000 pounds largely depends on bridges, he noted. If the bridges cannot handle the increased weights, roadways crossing them cannot be upgraded in capacity.

The final lists are not officially due until Jan. 1.

Frank Crabtree, director of the PSC transportation division that will enforce the new law, is also moving toward a deadline. Now adding former DOH enforcement staff to its own, the PSC is also "working out bugs" in the law such as where and how many times each truck will be weighed for compliance.

He said the system -- including electronic truck-weight reporting and sanctions -- could be operational by Oct. 1 if DOH releases its road list early.

Regional Editor Nora Edinger can be reached at 626-1447 or by e-mail at nedinger@exponent-telegram.com.