The Associated Press

INEZ, Ky. - Martin County Coal Co.'s engineering firm has been added as a co-defendant in a lawsuit over a massive slurry spill two years ago.

The engineering firm, Ogden Environmental and Energy Services Co., was added at Martin County Coal's request. The company contends its waste impoundment might not have collapsed if Ogden had recommended a better design for the slurry reservoir after a smaller spill six years earlier.

"Due to the work performed by Ogden, it is or may be liable to the Defendant for all or part of the Plaintiffs' claims," the company's motion said.

Martin County Circuit Judge Daniel Sparks granted the coal company's motion to make Ogden a co-defendant in one of eight lawsuits seeking damages from the October 2000 spill of 300 million gallons of coal waste.

There was no attorney for Ogden in court Friday. Ogden has 20 days to respond to Judge Sparks' summons. George Stengel, a spokesman at Ogden's office in Fairfax, Va., did not return several phone calls.

The collapse of the impoundment that collected runoff from washed coal sent a torrent of sludge onto private land and into Wolf and Rockcastle creeks and the Coldwater, Levisa and Tug forks of the Big Sandy River.

Two federal agencies that issued reports on the cause of the spill determined that Martin County Coal hadn't followed Ogden's recommendation to build a "seepage barrier" at the 70-acre impoundment.

The U.S. Mine Safety and Health Administration concluded last year that a seepage barrier would have prevented the spill. After a smaller break, in 1994, Ogden had recommended that Martin County Coal create such a barrier by spreading a layer of fine coal particles around the perimeter of the impoundment to prevent water and sludge from seeping out.

The U.S. Office of Surface Mining, in its own report earlier this year, didn't say the barrier would have prevented the spill but faulted the Ogden plan, saying it lacked a complete analysis of potential breakthroughs, preventive measures and a thorough stability analysis.

OSM, in agreement with MSHA, said there was no conclusive evidence that maps of abandoned underground mine shafts at the impoundment site were wrong. OSM and MSHA also said the barrier between the reservoir and the mine below it was at least 25 feet, a distance the agencies did not see as a factor in the spill.

In August, Martin County Coal agreed to pay $3.25 million in penalties and damages to the state of Kentucky. Those penalties came on top of an earlier $225,000 fine by the state Fish and Wildlife Service and a $110,000 MSHA fine.

The 72-acre impoundment has been closed and will be reclaimed, state officials have said.

The judge's ruling to include Ogden in a lawsuit comes nearly three months before the first scheduled trial stemming from the spill. That case involves a suit by 16 Martin County residents who say their property was inundated with sludge. They are seeking unspecified punitive damages from the coal company.

Ned Pillersdorf, a Prestonsburg attorney who filed the lawsuit two weeks after the spill, did not object to including Ogden but said he was suspicious about the timing and motivation of the motion.

"I've received no information that anybody but Martin County Coal did anything wrong," Mr. Pillersdorf said after Friday's hearing.

Charles Baird, a Pikeville attorney representing Martin County Coal, declined to comment on the motion.