Life, Liberty, and the Pursuit of Coal

IT TAKES A LOT of water to operate a coal tipple, and the one out on Buffalo Creek in Logan County, West Virginia was no exception. The tipple, owned by the Pittston Company through its Buffalo Mining subsidiary, used almost 500,000 gallons every day, two shifts a day and six days a week, pumping between 400 and 500 gallons of waste-filled water every minute. The waste was refuse from the coal mine, about 500 tons every day. Nobody knew what to do with it.

But in 1964, because the federal government decided that the Buffalo Mining Company couldn't dump this refuse-filled water into Buffalo Creek anymore (where it killed all the fish), the company began to build the first of three dams that would create ponds where it could dump the water. And the company could also kill two birds with one stone: it would build the dams out of the gob pile that just lay smoldering beside the mine--unhealthy situation that. You couldn't really call it a dam--no engineering, no overflow, no drains, just back some trucks up to the hollow mouth, and dump this waste in--there was your dam.

But there was 500 tons of waste and slate and crap going into the ponds behind the dams every day, and so they silted up pretty quick. By February, 1972, the largest one over on Middle Fork, a tributary of Buffalo Creek, had been built: 100 feet high and 600 feet across.

Between the 24th and the 26th of February, 1972, 3.72 inches of rain fell on Logan County, West Virginia--not unusual as the state climatologist would later testify. But it was enough, because there were no spillways built into the dam. On the morning of the 26th, Steve Dasovich, head of operations at the Buffalo mine, sent bulldozers to relieve pressure on the dam. It was too late for that, though. When they got to the dam a little before 7 a.m., it was gone. And 21 million cubic feet of water and God knows how many tons of mud and slag and crap were headed for the 16 little communities nestled along Buffalo Creek. Pretty soon, they were gone too. The flood swept down the narrow valley, 40 feet high, picking up automobiles and mobile homes and even houses. Even people. And when it was all over, 125 of them were gone.

Steve Dasovich later admitted under oath that the tragedy could have been avoided if a drain ditch had been built. The construction would have meant closing down Buffalo's No. 5 mine for a few weeks, curtailing production. You do not get where Steve Dasovich is by curtailing production.

Nobody could decide whose fault the disaster was. Republican Gov. Arch Moore, facing a tough campaign for re-election in November, disclaimed any fault of Pittston's. (Later, in the face of mounting public pressure, he would appoint an ad hoc committee to investigate the disaster; the committee turned up damaging evidence against the company.) Pittston said nothing, except that the disaster was an "act of God," although a Pittston lawyer told Ben Franklin of The New York Times that "in the long term, the responsibility rests with Pittston." But the people of Buffalo Creek, the survivors, knew where to affix the blame--it was God all right, they said: the Almighty Dollar.

Gerald Stern was 33 years old, a 1961 graduate of Harvard Law School, a veteran of the early '60s civil rights protests as a lawyer with the Justice Dept. In 1972 he was, to put it frankly, looking for a cause: Arnold & Porter, the big Washington law firm where he worked, allowed some of its lawyers to tackle their own public interest cases every year. It was his year, and in Buffalo Creek's survivors he found his cause. For the more than 600 people he would represent, Stern and the lawyers who worked under him would win one of the largest judgments of all time--$13.5 million. He would also gain Arnold & Porter a fee of $3 million, something he doesn't tell you until the last page of the book.

Before he could win his clients all that money he would have to overcome several barriers, not the least of which was the high-priced and high-powered legal talent of the Pittston Company's resources. Few people, attorneys or laymen, write lucidly about the intricacies of the law, but Stern's book is easily comprehensible, and even exciting. Stern writes with almost clinical detail of the two Pittston legal strategems he discredited. The first was the "act of God" theory. Stern proved that the disaster was the result of Pittston negligence, and when the company tried then to show that the disaster was not its fault because of "prior use and tradition," Stern annihilated that theory by showing that other Pittston dams in the area were adequately engineered, built of proper material and with spillways. But first he had to penetrate Pittston's "corporate veil," to prove that the Buffalo Mining Company, a West Virginia corporation, was in fact a subsidiary of Pittston, a New York firm. In this manner, Stern was able to get the case into federal court instead of the corrupt Logan County courts where the full pressure of the coal company could be brought to bear. One of his biggest obstacles was winning the trust of those he prepresented--always suspicious and with no reason to trust a Jew from the big city. He knew he had won their trust when he visited the home of one of his clients, who was calling her hogs "Arnold" and "Porter." A neighbor scolded her, saying Arnold & Porter were only trying to help them, and she should show more respect. The answer came, "I know that, they are out there rootin' for us, aren't they?"

What makes the $13.5 million judgement especially remarkable is that Stern won it mainly through pleading what he termed psychic impairment. At first the Pittston attorneys characterized this as mere "puff and blow," until witnesses' breakdowns during hearings convinced Judge K.K. Hall that this was not so. Teams led by prominent psychologists (including Harvard's Robert Coles) found anxiety symptoms in all survivors of the flood, even those who had made it to safety. They watched friends and relatives carried out of their arms, or pulled older folks out of the water with bodies smashed, to have them die from internal injuries on the cold February night. One woman would testify, "to some the beating of rain on a tin roof is sweet music. To me it's like the beating of a death drum."

Stern obviously has immense compassion for the people he represented. But it is only when he begins to detail his compassion that the book drags. He talks about his sympathy for the underdog, even to the point of writing that as a child, "I never liked the Yankees because they won all the time." At times he is unbelievably patronizing toward his clinets, to the effect "that the tall towering mountains make it impossible to see the horizon, easy to lose hope," or quoting John Denver's stupid song, "Country Road."

Still, these minor defects do not mar his skills as a lawyer or the service he did the people of Buffalo Creek. Still, four years later unsafe gob piles periodically overflow in back hollows of southern West Virginia and eastern Kentucky. They are conscientiously disregarded by company officials and state inspectors. The people of Buffalo Creek are still trying to put their lives back together; some still live in the temporary housing the government moved in after the flood. From Stern's account, for the people of Buffalo Creek and the Pittston Company it all came down to one question: which came first, the chicken hawk or the egg?