The Saga at Simmons Fork

( Thanks to the WV Register-Herald)
On July 8th, 2001 residents of Oceana and Mullins were surprised by one of the flash floods that can so devastate towns near Mountaintop Removal sites.

According to expert testimony by a former mine inspector, two violations by Pioneer Fuel regarding Mountaintop Removal and clear-cutting timber contributed significantly to flooding in the Oceana area.

Pioneer’s first notice of violation was at its Simmons Fork Mountaintop Removal site. The notice had been given all the way back on Feb. 21, 2001, as Pioneer palced spoil onto the downslope outside the permitted area, thereby breaking the law.

Pioneer Fuel would not remedy the problem until September 19th, 2001.

The second citation was given to Pioneer’s Winifrede #2 operation on June 26th for failure to clean sediment in two ponds. A timely response could have abated the flood that would happen within weeks.

However, Pioneer chose not to address the citation until Nov. 30, 2001, long after Oceana had been flooded.

Enter Jack Spadaro…

…

The Players
– The Jury
– The Honorable John Hutchinson (Judge, WV Supreme Court)
– Jack Spadaro (Expert, former mine inspector)
– Residents of Mullins and Oceana WV (Victims of MTR-caused flood)
– Pioneer Fuel (perpetrators of flood, law-breakers)

The Places
– Simmons Fork Mountaintop Removal site (where Pioneer allegedly broke the law)
– Winifrede Mountaintop Removal site(same)

Setting
The WV Supreme Court…

Jurors Tuesday looked at slides of rocks and debris left behind in Oceana once the waters of the July 8, 2001, flood receded.

They also looked at aerial photographs of two surface mines and their valley fills, covered by vein-like erosion marks.

And they listened as a former mine inspector pointed out the violations there that he says contributed to the damage suffered by neighbors living below Pioneer Fuel’s Winifrede and Simmons Fork mountaintop removal sites.

Jack Spadaro, a former mine inspector, is an expert in the areas of mining as it related to mountaintop removal and in discussing issues related to the permit process and whether companies complied with regulations governing the permitting process.

Spadaro has attracted attention before. In 2000, he went after Massey Energy after 300 million gallons of liquefied coal waste spilled in Kentucky streams.

On Tuesday, he began his expert testimony in this mass litigation that pits hundreds of residents in Mullens and Oceana against the coal and timber companies they say contributed to severe flood damage they suffered nearly five years ago.

Pioneer has tried, unsuccessfully, to attack his credentials, Judge John Hutchison ruled that Spadaro was qualified to testify as an expert.

It it easy to see why these companies attack him.

Spadaro:

“At least five times on Simmons Fork in the years preceding the July 8, 2001, flood, … spoil had been placed onto the downslope outside the permitted area causing off-site damage to downstream areas,”

He added that the site also had violations regarding sediment ponds that had not been cleaned when necessary, and that the two “notice of violation” citations issued to the company were still in effect when the storm hit.

Both violations, Spadaro said, would contribute to flooding in the Oceana area, believing that the violations “substantially increase the runoff.”

The Supreme Court recognized the July 8, 2001, rainfall event was unusual and unforeseeable, so it addressed how the defendant’s conduct may come in to play.

The court has already said a landowner could only be liable if engaged in conduct on their land that was not reasonable.

Reasonable?

[The Court ] also said a jury would have to determine if whatever the property owners were doing materially increased the flow of the water off their property and if the increase materially increased the flooding of the streams.

Then, if the jurors find that the landowners’ conduct increased flow and/or increased flooding, they must determine what was reasonable use.

If a landowner’s use of the land is deemed reasonable, then there can be no liability.

Reasonable?

Although the implications of this case could be huge for folks living in the coal fields, Judge Hutchinson has already stated that jurors would not be making a social determination on whether mountaintop removal and clear-cutting are right or wrong.
(Thanks Mary Anne)

About JW Randolph

Raised on the banks of the Tennessee River, JW's work to create progress in his home state and throughout Appalachia has been featured on the Rachel Maddow Show, The Daily Kos and Grist. He served first as Appalachian Voices’ Legislative Associate and then Tennessee director until leaving to pursue a career in medicine in 2012.